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RULING/JUDGMENT The claimant brought this action against the respondents by way of a complaint dated 24th September 2012 and filed on the same date. Accompanying the complaint is a 59 paragraphed Statement of claim/Facts, a 5 paragraphed affidavit, the List of Witnesses to be called and their written statement on oath and the claimants list of documents to be relied on. By the complaint, the claimants are claiming for the following declarations and orders – 1. A declaration of the honorable court that the claimants’ appointment/job with the 1st defendant cannot be suspended or terminated by the defendants, acting jointly or otherwise, or through anybody or authority, on grounds of an alleged newspaper publications not supported by the claimants or on any other self-induced ground by the defendants. 2. An order of court, restraining the defendants, their agents, servants, or privies from suspending, terminating or tempering in anyway, with the claimants appointment/job, rights, entitlements and benefits therein. 3. An order of court, restraining the defendants from tempering or interfering with the activities of the Academics Staff Union of Polytechnics (ASUP) Imo State Polytechnic Chapter, including the unions Chapter check off dues. 4. An order of court, mandating the 1st-3rd defendants to implement with immediate effect the Government of Imo State Audit Inspection Report of 5th September 2011, especially as it affects the 1st claimants promotion to the position of Chief Lecturer with effect from June 1991, the said 1st Claimant having worked for twenty seven (27) years without any promotion. 5. An order of court, mandating the 1st defendant, to pay to the 1st claimant with immediate effect, all his arrears of salary, benefits, rights, priviledges and other entitlements accruing from his said promotion to the post of a Chief Lecturer with effect from June 1991. 6. Five million Naira (N5,000,000.00) damages in favour of each claimant against each of the 1st – 3rd defendants. The defendants, along with their memorandum of appearance and statement of defence, filed a preliminary objection and a written submission in support of the preliminary objection dated 18th February 2013 with the following grounds 1. That this suit is incompetent for failure to comply with the provisions of the law. No- pre action notice was issued to the 1st -3rd defendants. 2. No cause of action-the issuing of queries to staff does not give rise to an industrial dispute The defendants formulated 2 issues for determination 1. Whether this suit is competent before this court 2. Whether having regard to the facts and circumstances of this suit any cause of action has arisen. The 1st to 3rd defendants/applicants argued that the pre-action notice where required by the law is fundamental to the competence of an action. That the Imo State polytechnic as a juristic body requires by the law creating it that where it is to be sued, a pre-action notice must be served on her for such action to be competent. They further submitted that the claimants failed and neglected to issue pre-action notice on the Imo State Polytechnic which goes to the root of the action and as such, questions the jurisdiction of the court. The defendants predicated their objection on the non-compliance with the provisions of law, referring to section 30(2) of the Imo State Polytechnic law (Michael Opara College of Education Edict) 2009 as variously amended (Annexed). Under this provision the 1st Defendant as an institution created by law is entitled to one month pre-action notice and such notice must state or contain those facts required by the law before any party who intends to maintain an action against the institution can be said to have brought an action properly before the court. That the essence for which a statue prescribes conditions for commencement of an action against certain bodies or person does constitute a denial of the right of access to the court by anyone wishing to do so and is not unconstitutional or inconsistent with section 6 of 1999 constitution of Nigeria as amended but to put the party on notice to have adequate time to prepare to deal with the claim against it as well as not to be taken by surprise by the aggrieved party. He referred the court to the case of EBONGO v UWEMED IMO (1999) 8 NWLR (Pt. 418) 245 & UNUKOROR V NPC (1995) 4 NWLR (Pt. 502) 656 SC. The defendants submitted that an action which commences without the issuance of a pre-action notice where it is statutorily provided for is incompetent and bothers on the jurisdiction of the court which can be taken up at any stage of proceeding. They urged the court to strike out the suit for incompetence and want of jurisdiction On the 2nd issue of whether the issue of a query to a staff amounts to an industrial dispute, the defendants submitted that a mere letter of query issued by the registrar of an institution does and cannot give rise to an industrial dispute rather it is a metadology (sic) employed under civil service to call staff in the service to order and discipline them when necessary. That the claimants were issued queries as required by the rules and time was given to them to supply their representations and instead of doing so they ran to the court to file an action against the Imo Polytechnic. The defendants concluded by urging the court to strike out the suit for incompetence and want of jurisdiction. In response to the preliminary objection the claimants filed a written address on the 26th February 2013. The claimants argued that the preliminary objection was not assessed, neither was it paid for or stamped. That it is elementary in law that any process nor relief not duly accessed and paid for, cannot be entertained by the court as same is incompetent. He referred the court to the case of O.O.M.F LTD V N.A.C.B. LTD (2008) 12 NWLR (Pt. 412) @ 414-415, and urged the court to hold the notice of preliminary objection as incompetent. That on the issue of non-disclosure of reasonable cause of action, the claimants argued that the position that the term “cause of action” or reasonable cause of action in law has been judicially defined as “facts or facts which establishes or gives a person a right to judicial reliefs, or which, if sustained, entitles the plaintiff to a remedy against the defendant. The claimants relied on the cases of Seven Up Bottling Co. vs. Akinware (2011) 15 NWLR Pt 1270 page 302 at page 321 para D-F and also Nduka vs. Ogbonna (2011) 1 NWLR Pt 1227 page 153; JVC P.P (UK) LTD V FAMUYIDE (2011) 4 NWLR PT 1238 PAGE 572. The claimants aver that where the issue of non-disclosure of cause of action or reasonable cause of action is raised, the only document the court must look at to determine whether or not the case discloses a cause of action or reasonable cause of action is the complaint/statement of claim, and no other document. They cited the cases of S.B.S.C NIG. LTD V O.F. IND LTD (2011) 3 NWLR Pt. 1235 page 421 at page 432 paras E-F and also the case of OHAJI v UNAMKA (2011) 4 NWLR Pt. 1236, Page 148 at page 160 paragraph C-E. IKENNE LOCAL GOVT V W.A.P.C PLC (2011) 12 NWLR PT 1261 PAGE 223 at page 251 paragraphs E-G. The claimants urged the court to limit its looks to the content of documents forming the content of its case file. They cited the case of FUMUDOH V ABORO (1991) 9 NWLR (PT 241) 210 @ 220 Ratio 19. The claimants further submitted that the complaint and the statement of claim especially relief 2 and paragraph 1-59 of the statement of claim among others disclose reasonable cause of action against the 1st -3rd defendants/applicants and also in the issue of pre-action notice raised, that the only documents the court can look at to determine whether the claimant has complied with the requirement of the law with regards to issuance of pre-action notice is the statement of claim. The claimants argued that paragraph 56 of their Statement of facts was not denied by the defendants and that they even gave notice to produce. The claimants concluded and submitted that where an action is instituted in defiance of issuance of pre-action notice, which they claim is not the case at hand, the court before which the proceedings are taken shall not dismiss the proceedings but shall direct the claimant to give the requisite pre-action notice and adjourn the matter accordingly. They cited the case of MOBIL PRODUCING NIG.UNLTD V LASEPA (2000) FWLR (Pt. 7) 1202 C.A The claimant’s respondents urged the court to dismiss the preliminary objection with substantial cost. In their reply on points of law, the defendants/applicants’ counsel addressed the two points raised by the claimants in their address, that the claimants argued that the notice of preliminary objection served on them shows that it was not assessed, paid for nor stamped and for that reason it is incompetent and that for the court to determine whether a suit discloses a cause or reasonable cause of action only the statement of claim should be looked at. Counsel submitted that the notice of preliminary objection referred to was amongst other processes filed at the registry of this court on the 18th of Feb 2012. The bundle of papers were assessed by the registrar of this court and paid for, photocopies of the receipts issued were annexed and were stamped and relevant areas signed by the registrar. He stated that the duty of a litigant is to package his papers and submit to the registrar of the court. He does not do the assessment, stamping or signing; he referred the court to the case of USUF V OBASANJO (2003) 16 NNLR (P 847) 554, ADELEKE V OYHA (2006) 11 NWLR (PT 990) 136. That assuming but not conceding that there was anything left undone by the registry in respect of the notice of preliminary objection it is not visited on the litigant. DUKE vs. AKPABUYO EG (2006) All FWLR (294) 559 and NNPC v AHAMBA (2010) All FWLR (pt. 508) 365 at 374. In this case the papers were processed and served by the registry of this court on the claimant. They urged the court to discountenance the argument on this issue. Defense counsel reiterated that their contention in the preliminary objection is that there was no pre-action notice as required by section 30(2) of the Imo State Polytechnic law No 11 of 1979, as amended. This issue was not addressed or contested by the claimant’s counsel. Rather he reproduced paragraph 56 of his statement of claim to plead and give notice to produce a document which order 3 Rule 4(2) of the rules of this court says should be frontloaded. It is submitted that there is no pre-action notice before this court, the alleged pre-action notice mentioned in paragraphs 56 was said to have been issued on the 20/8/2012 while the cause of action in this suit arose on the 11th of September 2012. On the issue of cause of action, Defence Counsel submitted that the court would discover that what gave rise to this suit was a query dated 11th September 2012 and that it is still their contention that the issuing of a query does not create an industrial dispute and therefore cannot give rise to a cause of action. Furthermore a cause of action accrues on the date on which the incident giving rise to the action arose. Okenwa vs. Military Governor of Imo State (1997) 6 NWLR (pt. 507) p 154 at 167. The defendants counsel urged the court to dismiss the suit. The defendants in their reply argued that their contention is that no pre-action notice was given to the 1-3rd defendants and neither was it frontloaded. They claimed that they do not have any copy with them and as such the suit is incompetent. Counsel to the 4th defendant aligned his position with that of the 1st -3rd defendant’s counsel citing section 167(d) and submitted that there was no pre-action notice. That the Claimant’s statement that they served pre-action notice should be discountenanced and that the court should not go shopping for pre-action notice. Claimants counsel submitted further that section 167(d) of the Evidence Act as cited by the defendants is an issue that can only arise at the trial, since it is clear by paragraph 56 of the Statement of Facts that notice to produce was given to the 3rd Defendants. That it is elementary law that where notice to produce is given to the defendants, the law requires such defendants to produce same. Where he fails, it is only during trial that the party pleading same can be permitted to produce a copy. And that it is pre-mature at this stage to cite Section 167(d) of the Evidence Act. Counsel also submitted that by Order 3 rule 4(ii) cited by counsel, where a party gives notice to produce the law presumes the document to be in custody of the party to whom such notice is given. The party who gave notice is not expected to frontload a document in possession of the adverse party and that order 3 rule 3 talks about amendment, so they can still come back. I have carefully considered the submission of Counsel on both sides, their written addresses, depositions and verbal adumbrations. I have only one issue before me as formulated by the defendants, it is whether or not the suit is incompetent for failure to comply with the provisions of the law because no pre-action notice was issued to the defendants. It is necessary to recall that the defendants had argued on the 7th of October through their Counsel C. C. Uzoigwe in open court that the purported pre-action notice was dated 20th August 2012 and that going by the Micheal Opara College of Education Edict, Section 30(2) “no suit shall be commenced against the college until after one clear month” and that assuming but not conceding that they were served the notice on the 20th of August, it is still not one clear month from 20th August to 24th September. At this juncture the court asked counsel to address it on the “definition of one clear month”. Counsel to the defendant asked for a date in which to come back and address the court on the issue. On the 4th of November 2013 claimants counsel pointed out that the defendants had misled the court as regards the provisions of section 30 of the Micheal Opara College of education Edict. He said that the section did not read “one clear month” as purported by the defendants counsel but “one month”. It is obvious from the above drama that Counsel who started the argument and got stuck due to the definition of “one clear month” was not seised of the facts of the case and was merely arguing based on the written addresses of the Claimants, and the said Paragraph 56 of the Statement of Claim which the Claimant strongly relied on. This is quite disheartening. In any case, Counsel was careful to use the phrase “assuming but not conceding that they served the notice on 20th August 2012….” This, to my mind, does not amount to admission by counsel that the defendants were served on the 20th of August. It also worthy of note that Counsel for the 1st and 2nd defendants Mr. Kalmange who eventually argued the motion for preliminary objection on the 4th day of November, told the Court that he was abandoning the arguments of the defendants relating to the issue of cause of action. Therefore the sole issue before me is the issue of pre-action notice. With regard to the claimant’s argument that the preliminary objection was not assessed, paid for or stamped, I have looked at the copies in the court’s file and observed that they were duly filed and assessed. There is also the evidence of payment of the requisite fee for filing. In the case of Ogli Oko Memorial Farms Ltd vs. NACB Ltd, (2008) 12NWLR (Pt.1098) 412, Onnoghen JSC had this to say: “Note that the jurisdiction of the court to hear and determine any matter is invoked by the filing of the appropriate processes in the registry of the court and by “filing” of a process is meant payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated registrar of the court concerned.” If unfortunately in this case, the claimants’ copies were unstamped, it may have been an administrative lapse, considering that other copies including the copies in the case file were stamped and duly signed by the designated registrar. I hold that the processes are competent and properly before the court. Any administrative omission should therefore be corrected and duly sorted out with the registrar. Now to the sole issue for determination, the Law is clear on the issue of pre-action notice. Non-service of pre-action notice puts the jurisdiction of a court on hold pending compliance with the pre-condition. Failure to serve the said notice amounts to an irregularity that renders the suit incompetent. This was the view of Ogbuagu JSC in Nigercare Development Company vs. Adamawa State Water Board (2008) 9 NWLR (Pt. 1093) Pg. 498. Section 30(2) of the Michael Opara College of Education Edict provides thus: “No suit shall be commenced against the College until at least one month after written notice of an intention to commence the same shall have been served upon the College by the intending Plaintiff or his agent, and such notice shall clearly and explicitly state the cause of action, the particulars of the claims or the relief or remedy sought, and the name and place of abode of the intending plaintiff.” The effect of non-service of a pre-action notice, where it is a statutory requirement, is an irregularity which renders an action incompetent. The irregularity may 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 vs. Maikudawa (1991) 1 NWLR 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. Where the issue of non-compliance with pre-action notice provision of the relevant law and it is shown that there has been non-service of pre-action notice, the court is bound to hold that the plaintiff has not fulfilled a pre-condition for instituting his action. In other words, where there is non-compliance with the stipulated pre-action condition for setting a legal process in motion, any suit instituted in contravention of the relevant law is incompetent and the court of law for that reason lacks jurisdictional power to entertain it. See Nonye vs. Anyichie (2005) 1 SC (Pt 11) Pg 96. Per Akintan JSC. “The law remains firmly established that where a statute provides for the fulfillment of certain conditions before an action is commenced; failure to fulfill the condition or conditions precedent will render the entire action a nullity.” Per Oredola JCA in Monye vs. Abdullahi (2012) LPELR-20103(CA). Paragraph 56 of the claimants’ Statement of facts reads thus: “The Claimants following all these treats(sic) and manner in which the defendants were treating them had in the past briefed their solicitors G.C Aririguzoh & co, who in compliance with the relevant laws, gave the defendants a pre-action notice, which said notice is dated 20/8/2012 and was received by the 3rd defendant on behalf of the 1st-3rd defendants on the same date but who after going through same refused to acknowledge the claimants copy, stating that he needed to bring same to the attention of the 2nd defendant before she can acknowledge same. The said pre-action notice is hereby pleaded. Notice is hereby given to the defendants to produce the said pre-action notice served on them by the claimants.” The defendants assert that the claimants were issued queries as required by the rules and time was given to them to supply their representations and instead of doing so they ran to the court to file an action against the Imo Polytechnic. The question that arises then is: Is the letter referred to in paragraph 56 of the Statement of facts (reproduced above) the pre-action notice within the contemplation of the law? Perhaps, if the Claimants Counsel had frontloaded the said pre-action notice along with the other documents he frontloaded, the Court would have been able to answer this pertinent question. That is to say, the Court would have been easily seised of the form and content of the document referred to therein, and be enabled to discover if it was actually the pre-action notice contemplated in S30(2) of the Michael Opara College of Education Edict. Again, in paragraph 51 of the Statement of facts, the Claimants have pleaded to facts to the effect that queries were issued to the 1st and 2nd Claimants on the 11th day of September 2012. Copies of the said queries were frontloaded along with the Complaint. A combination of these facts would suggest that the event that triggered this suit was the issuance of queries to the Claimants on the 11th day of September 2012. It is not unlikely that the letter purportedly written on the 20th day of August 2012 may not necessarily have been in contemplation of this action. I say this because the facts narrated in the Statement of facts show that the problem between both parties dates back to 1991 when the 1st Claimant’s appointment was terminated. He was later re-instated with effect from the 1st day of July 2004. The averments in the Statement of Facts portrays a scenario whereby the defendants had continually done all manner of things to the Claimants since 2004 (after being re-instated), until 11th of September when queries were issued to them and they came to Court. It can therefore be rightfully perceived, that it was issuance of queries that triggered this action. This action was filed on the 24th day of September 2012. Assuming that the Claimant’s omission to frontload it along with the Complaint was an oversight, the Claimants could still have filed additional documents since discovering the omission. Interestingly, the Claimant’s Counsel even argued that Section 167(d) of the Evidence Act 2011 (cited by the defendant) is an issue that can only arise at the point of trial. For clarity, Section167 (d) provides that: “Evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it.” In the case of Akeredolu vs. Mimiko (2013) LPELR-20532, the Court of Appeal had to answer a pertinent question posed by the learned counsel: “Can the appellant rely on their reply brief to bring in a major evidence of this nature?” The court of Appeal went further to cite the case of Orji vs. Ugochukwu (2009) 14 NWLR (Pt.1161) Page 207 @ 296 as being quite instructive on the issue. Therein, Ibiyeye JCA had this to say regarding evidence of a tape recorder and a witness not previously listed in the main petition: “Both the PW5 and Exhibit HS were not listed or frontloaded as a witness and the document respectively. They were instead, brought in particularly in Petition No. ABS/GOV/EPT/9/07 in the reply of the Petitioner/Respondent’s to reply of the 1st and 2nd Appellants. This approach to start with, is utterly irregular and is an affront to paragraph 1(i), (b) and (c) above, as petitioner cannot at reply stage be allowed to bring in, without leave for an amendment sought and got from the court, any substantial facts which ought to have been raised in the petition itself.” In the case before us, one may ask: “does the Claimant have any plans of eventually producing or frontloading the said pre-action notice, albeit a secondary copy?” I think not. I say this because the Claimant had enough time to have filed an amendment as soon as he saw the Notice of Preliminary objection which the Defendants filed since the 18th day of February 2013, thereby bringing in the secondary copy of the notice. The Claimant has had series of opportunities since then, even when he received the defendants’ reply on points of law which the defendant filed on the 15th day of April 2013. The application was eventually heard on the 4th day of November 2013, more than one year after the Claimants filed their Complaint. Order 3 Rule 4 of the Rules of this court clearly provides that The complaint shall be accompanied by i) a statement of facts establishing the cause of action; ii) copies of every document to be relied on at the trial; and iii) list of witnesses to be called. Going by the provisions of Order 3 Rule 4, the Claimants ought to have frontloaded a copy of the document referred to in Paragraph 56 of their Statement of Facts since they planned to rely on the said document in their case. The existence or otherwise of the said pre-action notice is in my view, very fundamental to this case. In the case of Uduma vs. Arunsi (2010) LPELR-9133CA, Ogunwumiju JCA has held that “there are legions of authorities to the effect that non-compliance with the rules of Court or Practice Directions 2007 which relate to the provision for invoking the jurisdiction of a court where fundamental, cannot be regarded as a mere irregularity and will rob the court of power to exercise jurisdiction over the parties”. Section 30(2) of the Michael Opara College of Education Edict is clear on the content of a pre-action notice. It provides that: such notice shall clearly and explicitly state the cause of action, the particulars of the claims or the relief or remedy sought, and the name and place of abode of the intending plaintiff.” Since unfortunately, the Claimants did not deem it fit to frontload a copy of the pre-action notice purportedly written on the 20th day of August 2012, and pleaded in their Statement of facts, it would be impossible for the court to rule based on a document that it has not seen, and the court will not go shopping for a pre-action notice. If at all there was a letter written by the claimants on the 20th of August 2012, the court is unable to view its form and content to enable it determine whether or not it qualifies as the pre-action notice contemplated by the Section 30(2) of the Michael Opara College of Education Edict. The burden of proof in civil cases lies on the party who asserts the affirmative of the issue in the light of the provisions of Section 131(1) & (2) and 132 of the Evidence Act, 2011. The Court of Appeal in the case of Intercontinental Bank Plc vs. Hilman & Bros Water Engineering Services Nigeria Ltd (2013) LPELR-20670 CA has held that the general burden of proof in civil cases rests on the party who asserts the affirmative of the issue. The defendants have claimed that they do not have any copy with them. It therefore behoves on the claimants to have frontloaded or exhibited a copy of the pre-action notice, since they alleged its existence. This they did not; neither in their pleadings nor even in their counter-affidavit filed in opposition to this motion. In the circumstance and for all the reasons given, the preliminary objection of the defendants/applicants succeeds. The suit is hereby struck out. I make no order as to costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge