Condolences to the Uwais Family
I express my condolences to the Uwais Family on the passing of their Patriarch, Honourable Justice Mohammed Lawal Uwais, GCON, the 7th Indigenous Chief Justice of Federal Republic of Nigeria (CJN). May Allah, in His infinite mercy, grant him the highest level of Jannah. Ameen.
Today’s This Day Lawyer publication, is a tribute and testament to CJN Uwais, the longest serving Supreme Court Justice and second longest serving CJN in Nigeria’s history, how he conducted himself and discharged his duties admirably as CJN.
For me, when such a death occurs, I see it as a time for deep reflection on my own life, as it should be for all of us. I start to ask myself questions such as, what positive impact have I made on anyone’s life or on society generally? Will I have enough, to bag me a verdict of ‘Not Guilty’ in ‘Kootu Òlòrun’ (Heavenly/God’s Court)? The death of his Lordship is a reminder that life, no matter how long, holding a position, for no matter what length of time, is temporary; and death is a debt that we all owe God. And, that, even if Section 6(6)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) which ousts the jurisdiction of the courts with regard to Chapter II of the Constitution, that is, the Fundamental Objectives and Directive Principles of State Policy, so that Government and its Officials escape ‘worldly’ accountability to the people, aside from the fact that none of us will escape accountability to God for our actions, what will people say about us when we die? Will the report be good, like that of CJN Uwais?
‘Kootu Òlòrun’
I fear for many within the three arms of Government today, that their report and judgement may not be favourable. And, in ‘Kootu Òlòrun’, Justice, which is something that is so precious to the Almighty, will be handed down accordingly! There is no technical justice there! In Akpan v Bob (2010) LPELR-376(SC) per Ibrahim Tanko Muhammad, JSC (later CJN), the Supreme Court held inter alia that “…technical is no justice at all….”; I concur.
However, it appears that courts do not always follow this precedent. Take for example, the recent Supreme Court decision in the Gwandu Emirate Case – can we say that substantive justice was truly served in a 20 year old case in which all the proceedings were set aside by the Supreme Court (in a 3:2 decision), because deposed Emir, Alhaji Mustapha Jokolo allegedly didn’t serve a pre-action notice on the Kebbi State Governor/Government (KSG) before legal proceedings were instituted? While I have not had the benefit of reading the full judgement in this case, I read several news items reporting the matter, including one that quoted excerpts of the judgement.
Pre-Action Notice
In Ntiero v N.P.A. 2008 N.W.L.R. Part 1094 Page 129 at 142 per Ibrahim Tanko Muhammad, JSC (later CJN); per Samuel Akinola Akintan, JSC the Supreme Court held that a Pre-Action Notice “should be in form of a letter usually written by a Plaintiff or his Solicitor to the prospective Defendant giving him notice of intention to institute legal proceedings against him for specified reliefs”. In Abuja Municipal Area Council v C.N. Okoli Transport Co. Ltd (2009) LPELR-3579(CA) the Court of Appeal held that “The rationale behind the jurisprudence of a pre-action notice, is to enable the Defendant know in advance the anticipated action, and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the Court. The purpose of giving notice to a party, is that it is not also taken by surprise, but so that it should have adequate time to prepare to deal with the claim in its defence”.
One of the reasons for the pre-action notice, is for the Defendant to be made aware of the imminent institution of legal proceedings, particularly to stop abuse and fraud, for instance, where some Plaintiffs have been known to file cases surreptitiously and obtain judgements against Defendants without their knowledge. The importance of such a notice or the need for it, varies from one circumstance to the other, even if it is a condition precedent, and in some cases, there may be no real need for it, as it may be superfluous (like saying reverse back!).
Considering the fact that it was the KSG that deposed Alhaji Jokolo, and they were ably represented in the matter, no one can say the Defendants weren’t aware of the case. The question should have been, whether non-compliance with the pre-action protocol impacted the KSG negatively and/or whether it’s absence could not have been treated as a procedural irregularity, and not one that was fatal to the proceedings.
Even if the Kebbi State Chiefs (Appointment and Deposition) Law, required a pre-action notice protocol to be followed where there’s such a dispute, before the institution of legal proceedings, that is, the fulfilment of a condition precedent before litigation, does non-compliance with a pre-action notice protocol necessarily result in the proceedings in a matter being set aside/nullified? The answer is, not always.
I submit that the issue of non-compliance with serving a pre-action notice, should be settled on a case by case basis, and not in a blanket fashion, particularly because circumstances may differ from case to case, and additionally, there are exceptions to the rule of service of pre-action notices, that is, in the case of fundamental rights enforcement, and when the Defendant waives the right to a pre-action notice and doesn’t include the non-service of same as an issue in the pleadings. See the case of Obasa & Ors v Fadeyi (2020) LPELR-51758(CA) per Mistura Omodere Bolaji-Yusuff, JCA.
Matters Arising
Like I mentioned before, since I’m yet to read the Gwandu Emirate case’s judgement, I do not know whether the Kebbi State Government raised the issue of non-compliance to the pre-action notice protocol in their pleadings; but, the truth of the matter is that, the fact that the Defendant defends the suit is enough to imply that he/she is aware of the case and has waived the right to the pre-action notice; because, with or without the pre-action notice, the reasons for its issuance can be fulfilled without it, and it’s essence also fulfilled in its absence, as in the Gwandu Emirate case, that is: 1) knowledge of the case – the Kebbi State Government was aware of the case and participated in it fully; 2) possible amicable settlement – nothing stops parties to an action from adjourning the process of litigation, to allow for settlement. The court usually grants adjournments for report of settlement, and if a settlement is reached in the course of the proceedings, Terms of Settlement are filed, and entered as the judgement of the court in the matter.
My point? In this particular instance, non-service of a pre-action notice does not appear to be more than a mere procedural irregularity, and is nothing fundamental that goes to the root of the case. The non-service of the pre-action notice in the Gwandu Emirate case doesn’t appear to be something so crucial, that it was adjudged to be fatal. See Abuja Municipal Area Council v C.N. Okoli Transport Co. Ltd (Supra).
Additionally, in Alhaji Jokolo’s case, it appears that there were issues of fundamental rights involved, as it was canvassed that he was not given the right to fair hearing before he was deposed, contrary to Section 36(1) of the Constitution. See Muhammed & Ors v ABU Zaria & Anor (2012) LPELR-22366(CA) on the right to fair hearing.
In Akahall & Sons Limited v NDIC (2017) LPELR-41984(SC) per Kumai Bayang Aka’ahs, JSC, the Supreme Court in drawing a distinction between substantive irregularity and procedural irregularity cited the case of Mobil Producing (Nig.) Unlimited v LASEPA 2002 18 N.W.L.R. Part 798 per Ayoola, JSC where it held inter alia thus: “Much stress has been placed on the argument that non-compliance with provisions such as Section 29(2) of the Act (Federal Environmental Protection Agency Act) leads to a question of jurisdiction which can be raised at any time, and which if resolved against the Appellant, renders the entire proceedings a nullity. This rather mechanical approach to the issue, which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings, and one which is dependent on ascertainment of facts, leads to error……”.
In the locus classicus, Madukolu & Ors v Nkemdilim (1962) LPELR-24023(SC) per Vahe Robert Bairamian, JSC, the Supreme Court listed the conditions that must be satisfied before a court can exercise its jurisdiction, the last being that the case must be initiated by due process of law and upon the fulfilment of any conditions precedent to the exercise of jurisdiction. By failing to serve the pre-action notice on the Kebbi State Governor, the Apex Court majority decision held that Alhaji Jokolo didn’t initiate his suit via the due process of law, and this had robbed the court of jurisdiction. In short, such an important case which offered a golden opportunity to establish judicial precedent on the deposition of traditional rulers was not decided on its merits, but on procedure and technicalities. I must concur with his Lordship, Ayoola, JSC in Mobil Producing (Nig.) Unlimited v LASEPA (Supra), that this approach by the majority judgement appears to be mechanical. And, perhaps, since the non-service of the pre-action notice didn’t appear to affect the meat of the matter, it should have been treated as a procedural irregularity that wasn’t fatal to the case, so that substantive justice could be done.
I respectfully disagree with the majority decision, as it appears to visit what may have been a mistake on the part of Counsel in not serving the pre-action notice on the Kebbi Governor, on Alhaji Jokolo, thereby denying him of the opportunity of having the actual subject-matter of his case determined by the Apex Court. In Iroegbu & Anor v Okwordu & Anor (1990) LPELR-1539(SC) per Philip Nnaemeka-Agu, JSC, the Supreme Court held inter alia that “It should be regarded as settled by a long line of decided cases, that the courts do not normally punish a litigant for the mistakes of his Counsel”. In Alston S.A. & Anor v Saraki (2000) LPELR-436(SC) per Adolphus Godwin Karibi-Whyte, JSC, the Supreme Court held that “The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties, and not to impose sanctions merely for mistakes they make in the conduct of their cases, by deciding otherwise than in accordance with their rights”. I submit that, after 20 years, the majority decision of the Apex Court didn’t decide the Gwandu Emirate case on its merits, and in accordance with the rights of the parties.
Conclusion
In the interest of justice, for especially for so long, it is my humble opinion that, particularly in a situation that ordinarily, on the face of the statement of claim, the court of first instance is clothed with the requisite jurisdiction to hear and determine a matter, where the Apex Court is able to treat a mistake that doesn’t affect the substance of a case as a mere procedural irregularity and determine the appeal on its merits, it should. In Andrew v Oshoakpemhe & Ors (2018) LPELR-53228(CA) per Biobele Abraham Georgewill, the Court of Appeal held thus: “These days, the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties, in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path, aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases”. I concur.
In my humble opinion, the Gwandu Emirate Appeal, should have been determined on its merits by the Apex Court, as it would not have been unjust to the KSG to do so. Having been unilaterally deposed as Emir of Gwandu by the KSG, Alhaji Mustapha Jokolo was again denied fair hearing at the Apex Court based on a procedural irregularity – double denial. I believe that this another instance of technical justice being handed down by the majority, over and above substantive justice. Also see the Kebbi State Law, on Statute of Limitations to institute legal proceedings touching on Chieftaincy Matters.
Even though pre-action protocols have been introduced by the various courts in their Civil Procedure Rules as a condition precedent to the institution of legal proceedings, I still believe that the absence of it doesn’t have to be a deal breaker in all cases! Certainly, when a Plaintiff tries to pull a fast one on a Defendant by securing a questionable judgement in his/her absence, the issue of the non-service of a pre-action notice must necessarily be fatal and grounds to nullify such unusual proceedings.
But, when a Defendant fully participates in the case, why should the non-service of a pre-action notice be fatal, when everything a pre-action notice sets out to achieve, still remains fully achievable without it? The existence of this fact in some cases, automatically downgrades the absence of a pre-action notice from a fatal accident to a scratch on the vehicle. We must use some of these mechanisms fairly, as this is the essence of justice, and not in a blanket manner that could lead to the denial of justice for no legitimate or sound reason.