(2018) LPELR-43807(CA)

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1 MEKAOWULU v. UKWA WEST LOCAL GOVT COUNCIL CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON FRIDAY, 16TH FEBRUARY, 2018 Suit No: CA/OW/153/2009 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE Between EMMANUEL MEKAOWULU (Trading under the name and style of Amavic Electrical Industrial Nigeria) And UKWA WEST LOCAL GOVERNMENT COUNCIL Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - PRE-ACTION NOTICE: Whether the non-service of a pre-action notice is an irregularity that can be waived "There is also evidence that the Respondent never raised any preliminary objection against the Suit, on the alleged non-service of pre-action Notice, or on the alleged limitation bar, relied on by the trial Court to strike out the Suit. The Respondent had taken part in the trial to conclusion, before its Counsel thought it wise to make a heavy weather of the alleged failure to issue proper pre-action notice and the alleged limitation bar. Thus, even if there was any substance in those allegations (which is not conceded), such would only have amounted to irregularity, which would have been waived by the Respondent, as stated in the said case of Ntiero Vs NPA (2008) 10 NWLR (Pt.1094)129. See also Ugwuanyi Vs NICON INSURANCE PLC (2013) LPELR SC; (2013) 11 NWLR (Pt.1366) Page 546, where the Supreme Court held: "In Nnonye Vs Anyichie (2005) 2 NWLR (Pt.910) 623 at 646 of the report, this Court has stated on the issue at hand, thus: "It may be mentioned that the effect of non-service of a Pre-action Notice, where it is statutorily required, as in this case, is only an irregularity which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant, who fails to raise it either by motion or plead it in the statement of defence. See Katsina LGA Vs Makudawa (1971) 1 NMLR 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... The defence, like any similar defence touching on jurisdiction, should be raised preferably soon after the defendant is served with the writ of summons." Per MBABA, J.C.A. (Pp , Paras. D-F) - read in context 2. ACTION - PLEADINGS: Whether a defence of statute of limitation must be specifically pleaded "I want to add that the Defendant who wishes to raise a defence under the limitation law has to specifically plead it in his pleadings otherwise he is forbidden from raising it. Order 29 Rule 7(2) of Abia State High Court Civil Procedure Rule states thus: "Where a party raises any ground which makes a transaction void or voidable or such matter as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common Law, he shall specifically plead same." Respondent did not specifically raise the defence that the claim of the Appellant was statute-barred in its pleadings. He cannot now raise it." Per AWOTOYE, J.C.A. (Pp , Paras. F-E) - read in context

3 3. ACTION - PLEADINGS: Whether a defence of statute of limitation must be specifically pleaded "The law is that a defence of statute bar, like other specialized defences, must be pleaded, and failure to do so will deprive a defendant opportunity to rely on that defence. See Omotosho Vs Bank of the North Ltd & Anor. (2006) 9 NWLR (Pt.986) 573; Bamigbade and Anor Vs Adeyeri & Ors (2012) LPELR and Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt.1109) 122, where Niki Tobi JSC (of blessed memory) said: "The correct way of pleading the defence (statute of limitation) is to raise, distinctly, the particular statutory provision relied upon." Per MBABA, J.C.A. (Pp , Paras. D-A) - read in context

4 4. ACTION - PRE-ACTION NOTICE: Purpose of a pre-action notice "Appellant had cited judicial authorities, and rightly, in my view, to explain the purpose of serving a pre-action notice on a defendant; that it is meant to give him opportunity to settle the dispute, amicably, without resort to Court action; that the requirement of notice cannot be elevated to deny a claimant right to seek redress in Court. The case Amadi Vs NNPC (2000) 10 NWLR (Pt.674) 76, is quite instructive where it was held: "...the purpose of giving notice of claim to local government of the claim against it is that it is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice "is not to put hazards in the way of bringing litigation against it." Katsina Vs Makudawa (1971) NMLR 100. See also Mobil Producing (Nig) Unltd Vs LASEPA (2002) 18 NWLR (Pt798) 1 at 36, where the Supreme Court held: "A pre-action notice, which is for the benefit of the person or agency on whom or on which it should be served, is not to be equated with processes that are an integral part of the proceedings-initiating process. Rather, its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy." In the case of Nigerian Ports Authority Plc Vs Ntiero (1998) 6 NWLR (Pt. 555) 640 at 651, it was held: "A pre-action Notice is usually in order to give the prospective Defendant an opportunity to meet the prospective Plaintiff and negotiate any possible out of Court settlement." The Supreme Court in Ntiero Vs NPA (2008) 10 NWLR (Pt.1094) 129, said that: "A pre-action Notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to put on notice the person to be notified before the commencement of any legal action against such a person... The effect of non-compliance with service of pre-action notice amounts to an irregularity... It may be mentioned that the effect of non-service of a preaction notice, where it is statutorily required... is only an irregularity, which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the Statement of defence... 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 would exercise its jurisdiction." Per Mohammad JSC." Per MBABA, J.C.A. (Pp , Paras. B- D) - read in context

5 5. CONTRACT - ILLEGAL/VOID CONTRACT: Whether a party can resile from his obligation under a contract on the pretext of his own illegality "I do not think it will be good law, to allow time to run out for a person to settle his obligation in contract, after enjoying the proceeds of the contract. My Lord, Ogunwumiju JCA said that much in the case of Ukah & Ors Vs Onyia & Ors (2016) LPELR (CA): "I have to say that a party who has benefited from a contract cannot evade his obligations under the contract by relying on an allegation of illegality. For such illegality to avail the party, if all, it must be ex-facie. In W.C.C. Ltd Vs Batalha (2006) 9 NWLR (Pt.986) 595 at 616, 620, the Supreme Court held as follows: "The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality, he is also required to sets out the particulars of the illegality in the pleadings. This requirement is mandatory in all cases where the contract is not ex-facie illegal and the question of illegality depends on the circumstances of the case." In the case of Okechukwu Vs Onuorah (2000) LPELR (SC); (2000) 15 NWLR (Pt.691) 597, my Lord, Belgore JSC (as he then was) said: "Where parties agree in a solemn contract, they are supposed to fulfil all the conditions therein faithfully and honestly. Parties who entered into a contract are expected to honour its terms. A party who induced the other party to enter into a contract, which contract provides benefits for the inviting party which he has utilized without complaint, he cannot be found to deny the validity of that contract." Per MBABA, J.C.A. (Pp , Paras. E-G) - read in context 6. EQUITY - PRINCIPLES OF EQUITY: Whether a party can benefit from his own wrong "A party is barred from profiting from his own wrongs. See PDP VS Ezeonwuka & Anor (2017) LPELR SC, where my Lord, Eko JSC, said: "Equity, acting in personam, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to temple of justice with dirty hands." See alsoteriba Vs Adeyemo (2010) LPELR SC; (2010) 13 NWLR (Pt.1211) 242, where the Supreme Court held: "...the applicable equitable principle being that a person cannot benefit from his own wrong. It is adjudicatory functions, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under contract by his own wrongful act... Ekanem Vs Akpan (1991) 8 NWLR (Pt.211) 616; Adedeji Vs National Bank Nig. Ltd (1989) 1 NWLR (Pt.96) 212; Ibekwe Vs Maduka (1995) 4 NWLR (Pt.392) 716." Per MBABA, J.C.A. (Pp , Paras. E-D) - read in context

6 7. EVIDENCE - ADDRESS OF COUNSEL: Whether address/argument of counsel can take the place of evidence "By law, address of Counsel, no matter how brilliant is never a substitute to the evidence needed to establish a claim. See Ogunsanya Vs The State (2011) LPELR SC: "No amount of brilliant address or playing to the gallery by Counsel can make up for lack of evidence to prove or defend a case in Court. The main purpose of address is to assist the Court and is never a substitute for compelling evidence..." Per Rhodes - Vivour JSC See also Olagunju Vs Adesoye & Anor (2009) LPELR (SC); (2009) 9 NWLR (Pt.1146) 225; Oyeyemi & Ors Vs Owoeye 7 Anor. (2017) LPELR (SC)." Per MBABA, J.C.A. (Pp , Paras. F-C) - read in context 8. LEGAL PRACTITIONER - RECOVERY OF LEGAL FEES BY CLIENT: Whether a defendant can settle the litigation fees of the Counsel to the plaintiff "This is a case where the application of Section 15 of the Court of Appeal Act, 2004 is appropriate to do the right thing which the Lower Court ought to have done. Having held that the contract between the parties was valid and that the Appellant had executed the contract and was entitled to the part payment of N4.8Million earlier made, the trial Court should have gone forward to grant the other reliefs except relief 2 for payment of Plaintiff's Counsel fees. By law, the Defendant cannot settle the litigation fees of Plaintiff's Counsel in the case against him, (Defendant). See Michael Vs Access Bank (2017) LPELR CA)." Per MBABA, J.C.A. (P. 23, Paras. A- D) - read in context

7 ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Abia State High Court in Suit No. HUK/2/2004, delivered on 22/6/2005 by Hon. Justice S.N. Imo (as he then was), whereof the Court held, against the Plaintiff (now Appellant), that the action was statute-barred. At the Lower Court, the Appellant (as Plaintiff) had claimed: (1) The sum of N11,703,729.00, being the money owed by the defendant to the Plaintiff. (2) The sum of N1,700,000.00, being the Plaintiff s Solicitor s fees to recover the owed sum. (3) 10% interest per annum on the owed sum till judgment is given, and another 10% interest per annum on the judgment debt from the date of judgment till when the debt is liquidated. The Suit was placed on the Undefended List on the application of the Appellant. The defendant (Respondent) subsequently filed a Notice of intention to defend the Suit and affidavit therefor, following which the Suit was transferred to the general Cause List for hearing and determination. Evidence was called. The Plaintiff (Appellant) called one witness and the defendant (Respondent) 1

8 called three witnesses. As part of the arguments of the Defendant. Counsel alleged/canvassed fraud against the Plaintiff, and collusion with staff of the defendant, and submitted that the claim was incompetent, in that the condition precedent for bringing the action, by way of preaction notice, was not complied with. He also submitted that the claim was statute barred, citing Abia State Local Government Law 1999, Cap 25 part XVL (Legal Proceedings and Limit of Suits against Local Government). The learned trial Court agreed with the Defence Counsel, and held: A cause of action is said to be stature-barred (sic) if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Law or Act has elapsed. The period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed. This can be done without taking evidence from the Plaintiff This writ was filed on 8th January, The Plaintiff s claim, relief 3 states: 2

9 10% interest per annum on the owed sum from 1st January, 2002, till judgment is given in this Suit This, no doubt, indicates the effective date of cause of action as relied upon by the Plaintiff. Thus, the time on the writ is far beyond the period allowed by the Abia State Local Government Law 1999, Cap 25. It is therefore my finding and I so hold, that this action is statute-barred. See pages of the Records of Appeal. That is the judgment Appellant appealed against, as per the Notice and grounds of the appeal on pages of the Records of Appeal. Appellant filed his Brief of Arguments on 16/9/16, which was deemed duly filed on 10/11/2016. Two Issues were distilled for the determination of the Appeal, as follows: (1) Whether the learned trial Judges decision to strike out the Suit on account of a presumed defective pre-action Notice was not wrongful and has led to a miscarriage of justice. (Grounds 1, 2 and 4). (2) Whether the learned Trial Judge was right to dismiss the action subject matter of this appeal by applying Section 137 of Abia State Local Government Law that deals with 3

10 Limitation with respect to the exercise of Public Duty and authority instead of applying the Abia State Limitation Law that deals with contracts was justifiable. (Ground 3). Arguing the appeal on 7/12/2017, Counsel for Appellant Emeka Etiaba Esq., who settled the brief, relied on the case of Amadi V NNPC (2000) 10 NWLR (Pt.674) 76, to state the intendment of the law for necessity of pre-action Notice; that the Supreme Court said: As was held by this Court per Coker JSC in the case of Katsina Local Government Vs Makudawa (1971) 1 NMLR 100 at 107, the purpose of giving notice to the Local Government of the Claim against it is that it is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice is not to put hazards in the way of bringing litigation against it. Counsel also relied on other cases to establish the purpose of Pre-Action Notice, that it was not intended to oust the jurisdiction of the Court; that it was meant to give the defendant opportunity to settle with the Plaintiff, without recourse to Court action. See Mobil Producing Nig. Unltd Vs LASEPA 4

11 (2002) 18 NWLR (Pt.798) 1 at 36; Nigerian Ports PLC Vs Ntiero (1998) 6 NWLR (Pt.555) 640 at 651. Even then, Counsel said for defence of failure to file preaction notice to be considered, the defendant must file a preliminary objection, alerting on the failure to raise the pre-action Notice. See Amadi Vs NNPC (2000) 10 NWLR (Pt.674) 78; that where the defendant has taken steps in the action or defended the Suit, he cannot again raise the issue of non-filing of pre-action notice, having waived the right to complain. See Eze Vs Okechukwu (2003) Vol. 2 MJSC 1 208, 188 at 201. In this case, Counsel argued that the pre-action Notice was, in fact, issued as per Exhibit H, but the trial Court held that it was wrongly addressed to the transitional Chairman, instead of the Secretary of the Local Government! Counsel blamed the trial Court for relying on technicality to defeat the cause of justice and relied on Hope Democratic Party Vs INEC (2009) 8 NWLR (Pt.1143) 297. He said that Defendant did not deny being served with the pre-action Notice. On Issue 2, Counsel said that Abia State Local Government Law Cap 25, 1999 deals with the exercise of 5

12 public duties and authority within the democratically elected Local Government Council; that it seeks to regulate the administration of Local Government Councils in clear terms; that it is rather the Abia State Limitation Law, Cap , that deals with limitation of time within which an action can be commenced in certain cases. He submitted that a clear appraisal of Appellant s claim at the Lower Court, shows that it bordered on contract (pages 3 8 of the Records); that the trial Court acknowledged on page 112 of the Records of Appeal, that the contract entered into by the Plaintiff and the defendant is in all respect, a valid contract and cannot be vitiated by non-compliance with the internal regulations of the Defendant which were not known to the Plaintiff. The trial Court further held that the Plaintiff by Exhibits A, B, C, D, E and F and his evidence in Court, satisfied the Court that there was, indeed, a genuine contract between the parties which the Plaintiff duly executed. I therefore hold that the sum of N4,800, so far paid to the Plaintiff was money properly paid on account of the contract! (Page 113 6

13 of the Records). Counsel submitted that the trial Court therefore erred in law by applying Section 137 of the Abia State Local Government Law, 1999, since the transactions that transpired between them and gave rise to the cause of action were contract in nature; that the trial Court should have applied Section 18 of the Abia State Limitation Law, which provides: No action founded on contract, tort or any other action not specifically provided for in parts II and III of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued. He said that parts II and III of the said Section 18 of the Law, deal with actions founded on land on the one part and judgments, trust property and Estate of deceased persons, on the other part. Counsel relied on the case of Kokoorin Vs Patigi Local Government (2009) 15 NWLR (Pt.1164) 205, which he said is on all fours with this case at hand. Counsel also argued that a case is usually determined on the strength of the pleadings. African Continental Seaways Ltd Vs Nigerian Dredging, Roads and General Works Ltd (1977) 5 SC , and so 7

14 Courts are warned to limit themselves to issues raised by parties in their pleading. Also, he said that Counsel are not allowed to spring surprise and the Court must rely on evidence before it not on brilliance of Counsel s address, in lieu of evidence CHIME VS EZEA (2009) 2 NWLR (Pt.1125) 263 at 370, 380; Esso Petroleum Co. Ltd Vs South Port Corporation (1956) AC 218. He urged us to allow the appeal, set aside the judgment of the Lower Court and enter judgment for Appellant in the Suit, invoking Section 15 of the Court of Appeal Act, The Respondent did not file any brief to contest this appeal. RESOLUTION OF ISSUES I shall consider this appeal on the two Issues distilled by the Appellant for the determination of this Appeal and shall take them together. Was the issue of defective pre-action Notice applicable to this case, to defeat the claim of the Appellant, and was the trial Court right to hold that the Suit was statute barred, after having held that the contract between the parties was valid; that the Appellant had executed the contract, and was even paid, in part? It is rather surprising to me that after hearing 8

15 the case of the Appellant to conclusion, and the Respondent fully involved, and the Court holding that the contract between Appellant and Respondent was valid, duly executed by the Appellant, the Court suddenly yielded to the persuasive address of the Respondent s Counsel over issues not clearly pleaded by the parties and to which no evidence was adduced to strike out the case which it had earlier made award of over 4Million Naira to the Plaintiff (Appellant) as admitted claim! It is difficult to understand or rationalize such legal error and muddle up, especially, as the issue which the trial Court considered and on which it based its decision to strike out the suit, was not duly taken out as preliminary objection (which should have come before the hearing the Suit) and the issue of statute bar was just raised in Defendant Counsel s address, without any clear pleading or evidence on it. In Paragraphs 3 and 4 of the Statement of defence, the Defendant simply said: In answer to paragraph 4 of the Plaintiff s affidavit in support of his claims... the defendant further aver that the Plaintiff at the hearing of this case, 9

16 should produce notice of tender for the construction of this alleged electrification... Project... in the absence of which the defendant states that there was no resolution and or directive from Abia State Government to Ukwa West Local Government Chairman by year 2000 to enter into any contract for the electrification of Obokwe... and shall at the hearing of this Suit raise all legal and equitable defence concerning the futility of the alleged contract agreement... (4) The purported contract agreement... was not contract by Ukwa West L.G... There was no authority whatsoever for anybody to enter into contract for the Ukwa West L.G. for the purposes of electrification of the alleged Obokwe... paragraphs 10 and 11 of the Plaintiff s affidavit in support is of claim is hereby denied and Plaintiff shall be put to the strictest, proof of the gunuiness of the purported job certificates and shall rely on non-service of preaction Notice, more so, the action i.e. situate (sic) barred pursuant to the limitation law. See pages of the Records. By law, address of Counsel, no matter how brilliant is never a substitute to the evidence needed 10

17 to establish a claim. See Ogunsanya Vs The State (2011) LPELR 2349 SC: No amount of brilliant address or playing to the gallery by Counsel can make up for lack of evidence to prove or defend a case in Court. The main purpose of address is to assist the Court and is never a substitute for compelling evidence Per Rhodes Vivour JSC See also Olagunju Vs Adesoye & Anor (2009) LPELR 2555 (SC); (2009) 9 NWLR (Pt.1146) 225; Oyeyemi & Ors Vs Owoeye 7 Anor. (2017) LPELR (SC). It was the Respondent s Counsel who raised the issue of the case being statute barred in his address (after just a line of obscure pleading thereof) at the close of evidence. The law is that a defence of statute bar, like other specialized defences, must be pleaded, and failure to do so will deprive a defendant opportunity to rely on that defence. See Omotosho Vs Bank of the North Ltd & Anor. (2006) 9 NWLR (Pt.986) 573; Bamigbade and Anor Vs Adeyeri & Ors (2012) LPELR 9852 and Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt.1109) 122, where Niki Tobi JSC (of blessed memory) said: The correct 11

18 way of pleading the defence (statute of limitation) is to raise, distinctly, the particular statutory provision relied upon. Of course, the Respondents Counsel, in my view, had grossly misconceived the Section 137 of the Abia State Local Government Law, which he relied upon to found his submission that Appellant s claim was statute barred, which also misled the trial Court into erroneous conclusion. That section, states: Where it is intended to commence a Suit against any Local Government for any act done in pursuance of execution of any law or of any public duty or in respect of duty or authority, such Suit shall not be instituted or commenced unless it is commenced, or instituted within six months after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within six months next after the ceasing thereof. Appellant argued that, that Section has to do with the exercise of public duty and authority by functionaries of the local government, trying to regulate the administration of Local Government Councils; that issues relating to limitation of action are rather governed by the 12

19 Abia State Limitation Law 1990 Cap 24 and Section 18 thereof states: No action founded on contract, tort, or any other action not specifically provided for in Parts II and III of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued. This case, as the trial Court, rightly found, was one of contract, which was validly entered into and executed by the Appellant and for which the Respondent had paid for part of the claim and judgment entered for the Appellant, in that part, amounting to N4.8Million. See pages of the Records of Appeal, where the trial Court held: the contract entered into by the Plaintiff and the defendant is in all respect a valid contract and cannot be vitiated by non-compliance with the internal regulations of the Defendant which were not known to the Plaintiff The Plaintiff by Exhibits A, B, C, D, E and F and his evidence in Court satisfied the Court that there was, indeed, a genuine contract between the parties which the Plaintiff duly executed. I therefore hold that the sum of N4,800,000.00, so far paid to the Plaintiff was 13

20 money properly paid on account of the contract." It is therefore inconceivable to say, let alone, hold that such valid contract duly executed and for which the Respondent enjoyed the benefits, could also be held to be statute barred, when it comes to payment for the whole job done which the Respondent had taken benefit of. To enforce such contraption as law would in my opinion amount to entrenching evil, encouraging a party to profit from his own wrong doing by taking benefit of a contract, but refuse to pay for the job, and manipulating the situation for a while to buy time - two or five years, and then plead statute bar when the Plaintiff finally takes action in Court to recover the debt! It should be of interest to the law why the defendant refused or neglected to pay the whole contract sum, and why the Plaintiff did not take out action in Court to recover the debt, before the expiration of the alleged statutory period. A party is barred from profiting from his own wrongs. See PDP VS Ezeonwuka & Anor (2017) LPELR SC, where my Lord, Eko JSC, said: Equity, acting in personam, would not allow a party to 14

21 benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to temple of justice with dirty hands. See alsoteriba Vs Adeyemo (2010) LPELR 3143 SC; (2010) 13 NWLR (Pt.1211) 242, where the Supreme Court held: the applicable equitable principle being that a person cannot benefit from his own wrong. It is adjudicatory functions, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under contract by his own wrongful act Ekanem Vs Akpan (1991) 8 NWLR (Pt.211) 616; Adedeji Vs National Bank Nig. Ltd (1989) 1 NWLR (Pt.96) 212; Ibekwe Vs Maduka (1995) 4 NWLR (Pt.392) 716." To that extent, I do not think it will be good law, to allow time to run out for a person to settle his obligation in contract, after enjoying the proceeds of the contract. My Lord, Ogunwumiju JCA said that much in the case of Ukah & Ors Vs Onyia & Ors (2016) LPELR (CA): I have to say that a party who has benefited from a contract cannot evade his obligations under 15

22 the contract by relying on an allegation of illegality. For such illegality to avail the party, if all, it must be ex-facie. In W.C.C. Ltd Vs Batalha (2006) 9 NWLR (Pt.986) 595 at 616, 620, the Supreme Court held as follows: The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality, he is also required to sets out the particulars of the illegality in the pleadings. This requirement is mandatory in all cases where the contract is not ex-facie illegal and the question of illegality depends on the circumstances of the case. In the case of Okechukwu Vs Onuorah (2000) LPELR 2431 (SC); (2000) 15 NWLR (Pt.691) 597, my Lord, Belgore JSC (as he then was) said: Where parties agree in a solemn contract, they are supposed to fulfil all the conditions therein faithfully and honestly. Parties who entered into a contract are expected to honour its terms. A party who induced the other party to enter into a contract, which contract provides benefits for the inviting party which he has utilized without complaint, he cannot be found to deny the validity of that contract. 16

23 The Respondent also alleged that Appellant did not serve pre-action Notice, or that the one served was defective, as it was not addressed to the Secretary of the Local Government Council, but to the Chairman, Transition Committee of the Local Government. Appellant had cited judicial authorities, and rightly, in my view, to explain the purpose of serving a pre-action notice on a defendant; that it is meant to give him opportunity to settle the dispute, amicably, without resort to Court action; that the requirement of notice cannot be elevated to deny a claimant right to seek redress in Court. The case Amadi Vs NNPC (2000) 10 NWLR (Pt.674) 76, is quite instructive where it was held: the purpose of giving notice of claim to local government of the claim against it is that it is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice is not to put hazards in the way of bringing litigation against it. Katsina Vs Makudawa (1971) NMLR 100. See also Mobil Producing (Nig) Unltd Vs LASEPA (2002) 18 NWLR (Pt798) 1 at 36, where the Supreme Court held: 17

24 A pre-action notice, which is for the benefit of the person or agency on whom or on which it should be served, is not to be equated with processes that are an integral part of the proceedings-initiating process. Rather, its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy. In the case of Nigerian Ports Authority Plc Vs Ntiero (1998) 6 NWLR (Pt. 555) 640 at 651, it was held: A pre-action Notice is usually in order to give the prospective Defendant an opportunity to meet the prospective Plaintiff and negotiate any possible out of Court settlement. The Supreme Court in Ntiero Vs NPA (2008) 10 NWLR (Pt.1094) 129, said that: A pre-action Notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to 18

25 put on notice the person to be notified before the commencement of any legal action against such a person The effect of non-compliance with service of pre-action notice amounts to an irregularity It may be mentioned that the effect of non-service of a preaction notice, where it is statutorily required is only an irregularity, which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the Statement of defence 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 would exercise its jurisdiction. Per Mohammad JSC In this case, there is evidence that a pre-action Notice was served on the Respondent, as per Exhibit H, which was admitted without objection, but Respondent argued that it was wrongly addressed to the Chairman, Transition Committee of the Local Government, instead of the Secretary of the Local Government Council, as stipulated by the Local Government Law. The Lower Court had agreed with the 19

26 Respondent, and wrongly in my view. The Respondent did not deny Appellant s paragraph 17 that a pre-action Notice to sue dated 13/10/2003 was delivered to the Defendant. Arguing that the letter was addressed to Chairman, Transition Committee of the Defendant, not Secretary, is an admission of collecting the pre-action Notice which in my opinion, therefore satisfied the purpose of pre-action notice, as stated in the case of Amadi Vs NNPC (Supra); Mobil Producing Nig. Unltd Vs LASEPA (Supra). There is also evidence that the Respondent never raised any preliminary objection against the Suit, on the alleged non-service of pre-action Notice, or on the alleged limitation bar, relied on by the trial Court to strike out the Suit. The Respondent had taken part in the trial to conclusion, before its Counsel thought it wise to make a heavy weather of the alleged failure to issue proper preaction notice and the alleged limitation bar. Thus, even if there was any substance in those allegations (which is not conceded), such would only have amounted to irregularity, which would have been waived by the Respondent, as stated in the said case of Ntiero Vs 20

27 NPA (2008) 10 NWLR (Pt.1094)129. See also Ugwuanyi Vs NICON INSURANCE PLC (2013) LPELR SC; (2013) 11 NWLR (Pt.1366) Page 546, where the Supreme Court held: In Nnonye Vs Anyichie (2005) 2 NWLR (Pt.910) 623 at 646 of the report, this Court has stated on the issue at hand, thus: It may be mentioned that the effect of non-service of a Pre-action Notice, where it is statutorily required, as in this case, is only an irregularity which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant, who fails to raise it either by motion or plead it in the statement of defence. See Katsina LGA Vs Makudawa (1971) 1 NMLR 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 The defence, like any similar defence touching on jurisdiction, should be raised preferably soon after the defendant is served with the writ of summons. The trial Court had held on pages of the Records: I want to state that the contract 21

28 entered into by the Plaintiff and the Defendant is in all respect a valid contract and cannot be vitiated by non-compliance with the integral regulations of the defendant which were not known to the Plaintiff. In other words, I do not see any act of fraud in Exhibit C which is a document that speaks for itself. I am also satisfied that the Plaintiff by Exhibits A, B, C, D, E and F and his evidence in Court, satisfied the Court that there was indeed a genuine contract between the parties which the Plaintiff duly executed. I hold that the sum of N4,800, so far paid to Plaintiff was money properly paid to the Plaintiff I wish the trial Court had held on to that clear and correct findings/position and relied on it to make necessary pronouncements on the remedies! Unfortunately, the trial Court somersaulted, and yielded to confusion to strike out, a case it just upheld and gave partial award! I have said that that conclusion was wrong and perverse. It is hereby set aside, as the Suit could not be struck out at that stage, and did not deserve a striking out, going by the evidence. This appeal therefore succeeds as the 22

29 Issues are resolved in favour of the Appellant. This is a case where the application of Section 15 of the Court of Appeal Act, 2004 is appropriate to do the right thing which the Lower Court ought to have done. Having held that the contract between the parties was valid and that the Appellant had executed the contract and was entitled to the part payment of N4.8Million earlier made, the trial Court should have gone forward to grant the other reliefs except relief 2 for payment of Plaintiff s Counsel fees. By law, the Defendant cannot settle the litigation fees of Plaintiff s Counsel in the case against him, (Defendant). See Michael Vs Access Bank (2017) LPELR CA). The Respondent (as Defendant) shall pay the Appellant (as Plaintiff): (1) The sum of Eleven Million, Seven Hundred and three Thousand, Seven Hundred and Twenty Nine Naira (N11,703,729.00), being the money owed by the defendant to the Plaintiff. (2) 10% interest per annum on the said outstanding contract sum from the date the judgment was due namely, 22/6/2005, till the debt is liquidated. The Respondent shall also pay the cost of this appeal assessed at Fifty 23

30 Thousand Naira (N50,000.00) only. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read in advance and while in draft, the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA just delivered. Let me say, that I agree entirely with his well marshaled reasoning and conclusion that the instant appeal is meritorious, deserves to succeed and should be allowed. My noble Lord and learned brother has characteristically and impressively dealt with all the salient issues which called for resolution/determination in this appeal. I therefore, have nothing particularly amazing to add to the said elucidating lead judgment. In this vein, I also abide by the consequential orders made in the said lead judgment of my learned brother Mbaba, JCA including the order which pertained to the payment/award of costs. Appeal allowed. TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to reading the draft of the judgment just delivered by my learned brother ITA G. MBABA JCA. I am in agreement with the reasoning and conclusion therein. I want to add that the Defendant who wishes to raise a defence under the limitation 24

31 law has to specifically plead it in his pleadings otherwise he is forbidden from raising it. Order 29 Rule 7(2) of Abia State High Court Civil Procedure Rule states thus: Where a party raises any ground which makes a transaction void or voidable or such matter as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common Law, he shall specifically plead same." Respondent did not specifically raise the defence that the claim of the Appellant was statute-barred in its pleadings. He cannot now raise it. For this and other reasons adduced in the leading judgment, I also allow the appeal. 25

32 Appearances: EMEKA ETIABA settled the brief which was adopted by B.W. GEORGEWILL ESQ. For Appellant(s) Unrepresented For Respondent(s)

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