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  • Nigercare Devpt. Co. Ltd. vs. A.S.W.B., Yola
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  • 2003-12-22
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Nigercare Devpt. Co. Ltd. vs. A.S.W.B., Yola

NIGERCARE DEVELOPMENT COMPANY LIMITED

V

ADAMAWA STATE WATER BOARD, YOLA

ADAMAWA STATE GOVERNMENT

WADSCO/IBG LIMITED

PRINCIPAL MANAGEMENT OFFICER, FEDERAL

MINISTRY OF WATER RESOURCES & RURAL DEVELOPMENT

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDARE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/110/99

WEDNESDAY, 10TH JULY, 2003

ACTION - Commencement of action - Statutory pre-conditions for commencement of action - Need to comply therewith

ACTION  - Pre-action notice - Non-compliance with pre-action provision in statute - Whether can be waived

ACTION - Pre-action notice - Non-compliance with the provision of a statute requiring pre-action notice to be given to the defendant - Effect

ACTION - Pre-action notice - Purpose of

COURT - Competency of court - Defect in competency of court - Effect thereof

COURT - When said to be competent


COURT - Court giving a decision on a point in which fair hearing was not accorded to the parties - Impropriety of

COURT - Court making on order on an issue not canvassed by parties in court - Effect thereof

COURT - Jurisdiction - Court raising same  and inviting parties to address thereon - Whether can be accused of ‘entering the arena’

COURT - Decision of court given without jurisdiction - Inherent power of same court to set aside

COURT - Jurisdiction which a court does not possess - Whether it can assume same

FAIR HEARING - Adamawa State Board Edict No. 4 of 1966, section 51(1) and (2) - Whether derogates from citizen’s constitutional right to fair hearing

FAIR HEARING - Citizen’s constitutional right to fair hearing - When a statute will derogate therefrom - When will not

FAIR HEARING - Court giving a decision on a point in which fair hearing was not accorded to the parties - Impropriety of

JURISDICTION - Court raising same  and inviting parties to address thereon -  Whether can be accused of ‘entering the arena’

JURISDICTION - Decision of court given without jurisdiction - Inherent power of same court to set aside

JURISDICTION - Issue of jurisdiction - When and who can raise

JURISDICTION - Jurisdiction - Whether can be acquired by acquiescence

JURISDICTION - Jurisdiction which a court does not possess - Whether it can assume same

JURISDICTION - When a court has no jurisdiction - Proper order it should make

STATUTE - Adamawa State Board Edict No. 4 of 1966, section 51(1) and

(2) -  Whether derogates from citizen’s constitutional right to fair hearing

STATUTE - Citizen’s constitutional right to fair hearing - When a statute will derogate therefrom - When will not

STATUTE - Edict - Whether divested of its potency by the provisions in the Constitution

Issues:

1.            Whether the provision of section 51(1) and (2) of Adamawa Edict No. 4 of 1996 is not inconsistent with the provisions of sections 33 and 236(1) of the 1979 Constitution.

2.            Whether the learned trial Judge was right to have declined jurisdiction and proceeded to strike out the plaintiff/appellant’s suit after hearing the matter on merit when none of the defendants raised such an issue of pre-action notice by way of defence in the pleadings and were deemed to have waived such defence.

Facts:

The appellant who was plaintiff at the High Court of Justice, Yola, Adamawa State claimed against the respondents and defendants jointly and severally various declarative reliefs. The respondents filed a counter-claim. After pleadings were filed and exchanged by parties, the suit proceeded to trial. Parties testified through their witnesses and counsel addressed the court. While the matter was pending for judgment, the court on 14/5/99 invited counsel for the parties to appeal and address it on the effect of section 51  of the Adamawa State Water Board Edict No. 4 of  1996.

Counsel addressed the court on 22/5/99 after which it delivered judgment striking out the suit as being incompetent on the ground that the one month pre-action notice required in section 51(1) and (2) of Edict No 4 of 1996 to be given by the plaintiff to the defendant not having been given, the action was incompetent. The counter-claim was also struck out by the court. The appellant, dissatisfied, appealed to the Court of Appeal. Section 51(1)  and (2) of the Adamawa State Water Board Edict No. 4 of  1996 provides thus:

Section 51(1) No suit shall be commenced against the board until one month has elapsed since a written notice to commence the suit shall have been served on the board.

        (2) A notice under subsection shall state (a) The cause of action (b)           The relief sought

(c)           The name and place of abode of the complainant