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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 7th September, 2013 SUIT NO: NICN/ABJ/308/2013 Between: Right of Traumatised wives and youths and Another Claimants AND Nigerian Television Authority (NTA) and 2 Others Defendants PRESENTATIONS: Parties are absent; Anyanwu Eusebuis Esq. for the claimants. No, legal representation for the defendants . RULING By a Notice of preliminary Objection ( NPO) dated the 19th of May 2013 and filed on the 21st of May 2013, the defendant /applicant prayed the court to strike out this suit on 2 grounds namely:- (1) No pre – action notice was given before the matter was instituted against the 1st defendant. (2) The suit in incompetent. This application is brought pursuant to order 11 of the rules of this court and under the inherent powers of the court; the application is also supported with a four paragraph affidavit, all sub-paragraphs inclusive, deposed to by Okwuchukwu Okoli Esq. a counsel in the law firm of E- Law and Co , Counsel to the defendants. In the written address in support of the defendants/applicant prayers the following lone issue is postulated for determination. “Whether having regard to the mandatory provisions of section 26(2) of the Nigerian Television Authority Act (NTA Act) Cap N136 LFN 2004, this suit is competent to cloak the Honourable court with the requisite jurisdiction. In arguing the sole issue submitted for determination, counsel drew the attention of sections 26 (2) and 27 of the NTA Act LFN 2004 to the court and pointed out that since the sections have not been complied with to the letter by the complainant/ respondant in this suit, the suit becomes incompetent and should be treated as such by the court. Counsel supported his submission further by citing the case of Niger Care Development Co. Ltd Vs. Adamawa State Water Board and Ors 2008 All FWLR Pt 422 1053 at 1081 by pointing out the succinct distinction between a Pr-e action Notice and a Pre-action letter. Counsel urged the court to hold that since the letter emanating from the claimant to the defendant was a Pre action letter and not a Pre action Notice, the statutory provision has not been complied with by the complainant/ respondant as required by law; counsel reinforced his argument by calling in aid the cases of Ebonyi State University and Ors Vs. Dr. Mrs. Mary J. Eteng 2012 LPELR 1973 (CA) NTIERO Vs. NPA 2009 2 WRN I; Feed and Food Farms Nig Ltd Vs. NNPC 2009 37 WRN I. It is the further submission of Mr. Okoli, counsel to the defendant /applicant that the plaintiff/claimant/complainant never served the defendant with the mandatory pre action notice. Counsel referred to the case of C.C.B. (Nig) PLC Vs. A-G. Anambra State 1992 8 NWLR Pt. 261 528; And urged the court to hold that this court has no jurisdiction to entertain this suit since the suit is incompetent. It is the position of the counsel that such an incompetent action ought to be struck out. Counsel cited the cases of Madukolu Vs. Nkemdilum 1962 2 SC NLR 341; Owners of the MV Arabella Vs. NAIC (Citation not supplied ) Abubakar Vs. Smith 1973 6 SC at 24 . In his opposition to the defendant/applicant prayers, the claimant/respondent filed a 13 paragraphs counter affidavit with two exhibits and a written address, wherein, the claimant/respondent formulated two issues for determination namely (1) Whether the court has jurisdiction to hear the suit (2) Whether the suit is incompetent Counsel to the claimant/respondent Mr. Egelamba posited on the issue of jurisdiction in arguing his opposition; He emphassied on the issue of jurisdiction and its important as he also distinguished the concept of jurisdiction from competence of an action although he realized the fact that the two are intertwine and they overlap in most cases. He reinstated the fact that competence is determined by jurisdiction. Counsel called in aid the cases of Olowu Vs. Nigeria Navy 2007 15 WRN 77 at 85; Ibeanu Vs. Egbeide 1994 7 NWLR PT 3590 697 at 700; Okoro Vs. Nigerian Army Council 2003 3 NWLR PT. 647, 77 at 80. Counsel referred the court to the Exhibits attached to the counter affidavit dated the 16th of September 2013 which is the pre-action notice and the acknowledgment letter by the defendant/applicant dated the 2nd of October 2013 and urged the court to discountenance the submissions and the prayers as contained in the NPO of the defendant /applicant. By way of addumberation, claimant /respondent counsel cited the case of Dada Vs. Dosunmu 2006 27 NSCQLR PG 494 AT 536 and urged the court not to entertain the antics of the objector who is only interested in technicality with the aim of delaying the justice of this case. On point of law, the defendant/applicant solicitor posited that where the law prescribe only a particular mode in an action such as the issuance and service of Pre-action Notice, only such mode is allowed in law. In this wise, counsel cited section 27 of the NTA Act LFN 2004 which enjoins and mandate that pre-action notice as contemplated should be served on the Chairman or the Director General of the Authority at the principal office or the relevant zonal office of the authority. Counsel further submitted that the action of the claimant/respondent by purportedly serving the Pre – action letter on the Acting Director General of the NTA has fallen short of the requirement of the law and as such, the suit is incompetent and should be struck out. Counsel call in aid the cases of Nawa Vs. AH General Cross River State 2008 All FWLR Pt 401 P. 807 at 831; Olaniyan Vs. Unilag 1985 2 NWLR PT. 9 599; NEPA Vs. Ango 2001 15 NWLR PT. 737 627. I have carefully perused through the objections, the arguments and submissions of learned counsel for the parties; the issue and argument of the defence centres on the fact that there is no valid Pre-action notice issued and served on the defendant by the claimant and as such the entire suit is incompetent and should be struck out as the court has no jurisdiction. Jurisdiction is a threshold issue. Where a court and indeed a trial court lacks one, whatever it does, amounts to a nullity. Jurisdiction according to the Black’s Law Dictionary, Nineth Edition by Bryan A. Garner page 927 -928 is the power of a court to decide matters presented to it and to enforce its decision. In a general Sense and complete sense , jurisdiction is the courts power to decide a case or issue a decree or decision. It is so fundamental and foundational in adjudication. There are two facets of jurisdiction. There is the procedural and the substantive aspect pertaining to the issue of jurisdiction. In determining the issue of jurisdiction, it is the claim endorse on the writ or stated in the statement of claim that will be considered, not the facts averred in the statement of claim or the affidavit evidence to be relied on by the claimant in the trial. It is a misconception to refer to facts pleaded in the statement of claim or averment in affidavit as component of cause of action to be relied on in ascertaining the jurisdiction of the court. This is the position held by the Supreme Court in the recent case of Society BIC S.A. Vs. Chargin Ind. Ltd 2004 4 NWLR PT. 1398 497. In order words, jurisdiction is determined by the claim and not the defence or any other process. See the cases of PDP Vs. Sylva 2012 13 NWLR PT 1316 85; Osoh Vs. Unity Bank PLC 2013 9 NWLR PT. 1358 SC I On the issue of substantive jurisdiction, I have looked at the originating process of the claimant and it is stated and claimed as follows: 1. The payment to the 2nd claimant by the Defendants, jointly and severally of the sum of N2,373,150 being the 10% commission due to the 2nd claimant for the programmes brought into the 1st Defendant by the 2nd claimant. 2. The payment to the 2nd Claimant by the defendants, jointly and severally of the sum of N175,300 being the sum total of the 2nd claimant’s 3 months’ salary from December, 2012 to February, 2013 and the inconvenience allowance for 25days due to the 2nd claimant which the Defendants have refused to pay. 3. The payment to the 2nd claimant by the Defendants of the sum of N360,600 being her personal money she expended in doing official work. 4. The payment of relocation allowance to the claimant said sum to be determined by the Defendant . 5. Interest of the whole sum due to the 2nd claimant at current bank rate from the date the sum was due to the date judgment is entered. 6. N5,000,000(Five Million ) as General Damages. 7. N500,000 Legal fee. 8. Cost of this action The other angle of jurisdiction which centres on procedural is the kennel of this Notice of Preliminary Objection under consideration. The objector seems not to have any objection with substantive aspect of jurisdiction; The cardinal issue to be determine by this court is whether or not the complainant has issued and duly served the defendant with a valid pre action notice to invoke the jurisdiction of this court. The first question to ask is what is pre action notice? It is only when this hurdle is cleared, that we can now conveniently peep into the claimant/respondent exhibit 1 and 2 to see whether it complies with section 26 and 27 of the NTA Act Cap N136 Law of Federation of Nigeria (LFN) 2004. Pre-action notice as the name implies is a mandatory provision of statute which requires an intending litigant to give specific number of days intimating a prospective defendant of a desire or intention to institute or commence a law suit. This notice normally contains the nature of the cause of action and the particulars of claim and the relief to be sought against the recipient of such notice. It is usually done to create room for amicable resolution to avoid waste of time and resources in the event of full blown litigation. The counter affidavit of the claimant /respondent has exhibits 1 and 2 attached therein. The defendant has not denied the existence of these exhibits particularly the reply written to the claimant dated the 2nd of October 2013. In effect, these two letters are not in controversy including their existence and content. By the provision of section 26(2) of the NTA Act Cap N136 LFN 2004, the law states as follows:- “No Suit shall be commenced against the authority before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the authority by the intending plaintiff or his agent, and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of the abode of the intending plaintiff and the relief which he claims” Exhibit 1 attached to the counter affidavit of the claimant/respondent which is a 2 paged letter contains the heading as follows: “Intention to commence legal proceeding against you” The name of the intended plaintiff was given as Mrs. Nkem Chukwuemeka. The cause of action was clearly headed as such which contains Nine heads of claims itemized accordingly. There is also a paragraph containing particulars of the claim with the heading “our particulars of claim” At the end of the Exhibit 1, the following conclusion is reflected “We believe that this notice provide an opportunity for amicable resolution of this matter” In the case of Niger Care Development Co. Ltd Vs. Adamawa State Water Board & Others (Supra) cited by Mr. Okoli counsel to the defendant/applicant, the court stated as follows; “The rationale behind the jurisprudence of pre-action Notice is to enable the defendant know in advance the anticipated action and a possible settlement of the matter between parties without recourse to adjudication by the court. It is a harmless procedure designed essentially to stop possible litigation, thus saving money and time of the parties….” A cursory look at the letter in question satisfies the rationale stated above. Moreover, all the ingredient of pre action notice, in my view are all present. This is a court of Law and Equity. By section 13 of the National Industrial Court Act 2006, the court is enjoined to administer Law and Equity concurrently. Whether the letter in question is a pre action notice or a pre-action letter is a matter of nomenclature and construction. The important thing is that it conveys to the recipient a clear and implicit notice of the claimant or prospective aggrieved claimant to institute an action. Equity looks at the intention, not the form; moreover, I have looked at the NTA Act Cap N136 LFN 2004, there is no precipie at the schedule to show the particular form a pre action notice should take. There is also no subsidiary legislation to this Act containing any further requirement on this issue of pre action notice; Exhibit 1 in question contains the intention to sue, the cause of action, the particulars of claim, the identity of the intending claimant and the relief which he claims. The last sentence of the exhibit invited the defendant/applicant to a settlement which was ignored hence this action. The defendants reply to the claimants notice of intention to commence legal action was dated 2nd October 2013 and sign by one Thessy Nwaneri, Secretary/legal adviser to the defendant wherein it denied liability and joined issues with the claimant as follows: “….NTA is not indebted to your client in any way” It was also the argument of the defendant/applicant that the pre action notice was not addressed to the chairman of the board of NTA or the Director General of the NTA. By section 27 of the NTA Act Cap N136 LFN 2004, the law says:- “The notice referred to in section 26(2) of this Act and any summons, notice or other document required or authorized to be served upon the authority under the provisions of this Act or any other enactment or law, may be served by delivering the same to the Chairman or the Director General of the authority, or by sending it by registered post addressed to the Director General at the principal office of the authority or the relevant Zonal office.” The letter intimating the defendant of an intending law suit was issued and delivered to the Acting Director General of the defendant. This fact is not in contention. The defendant acknowledges the receipt of this letter, gave a reply and joined issues therein. The name “Acting Director General” means there is no substantive Director General. All the functions, duties and responsibilities of the Director General was being done at that material time by the Acting Director General. I take judicial notice of this fact. The legal adviser and secretary of the NTA, did not reject the pre action notice. She did not object to the fact that there was no office designated as Acting Director General of NTA. In fact, the notice was accepted, acknowledge and replied. What can I say more? On the whole, I hold that the pre action notice duly issued and served on the defendant by the claimant is competent and valid. The objection of the defendant is hereby dismissed and I make no order as to cost. This suit shall proceed to trial. ----------------------------- Hon. Justice P.O Lifu JP. Judge