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International Tobacco Company Plc. v. National Agency for Food and Drug Administration and Control (NAFDAC)

Court of Appeal

Judgement Delivered on Wednesday, February 7, 2007
Citation: 50 NIPJD [CA. 2007] 376/2003
Suit No. CA/L/376/03      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ADZIRA GANA MESHELIA, J.C.A.
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Lead Judgement)
RAPHEAL CHIKWE AGBO, J.C.A.

Appearances: O. Oyefuso for the Appellant
E. Oji for the Respondent

Interpretation of provisions of the NAFDAC Decree No. 15 of 1993, as amended; Food and Drugs Act Cap 150, Laws of the Federation of Nigeria 1990 as amended, and the Drugs and Related products (Registration etc) Decree No. 19 of 1993 also as amended — The court considered whether the peculiar facts of this case constitute an exception to the judicial authorities that have held that non-service of a statutory pre-action notice renders the suit incompetent; Whether in view of the Respondents’ threat of harm to the Appellants’ business, the strict operation and application of S.26(1) of the NAFDAC Decree No. 15 of 1993 to the circumstances of the Appellant’s case constitutes denial of the Appellant’s right of access to courts.

I. FACTS

The suit giving rise to this appeal was on the 6th March 2003 brought in the Federal High Court by the appellant against the respondent by an originating summons seeking the interpretation of and construction to be placed on certain provisions of the National Agency for food and Drug Administration and control Decree Number 15 of 1993, as amended; the Food and Drugs Act Cap 150, Laws of the Federation of Nigeria 1990 as amended, and the Drugs and related products (Registration etc) Decree Number 19 of 1993 also as amended. The appellant also applied for interim and interlocutory orders of injunction restraining the respondent from entering,impounding and detaining the appellant’s products or staff pending the determination of the suit. These are all evidenced at pages 1- 47 of the record of appeal.

The learned trial court in consequence, refused the appellant’s application for interim reliefs. Before the hearing of the motion on notice for interlocutory injunction therefore, the respondent filed a preliminary objection contending that the statutory condition precedent for the commencement of the suit against the respondent was not satisfied by the appellant before the action was filed. The learned trial judge upheld the preliminary objection i.e. to say to the competence of the suit on the ground that the condition precedent of service of a pre-action notice before the commencement of the suit was not complied with. The suit was accordingly struck out. This appeal is therefore against the said ruling delivered on the 19th May, 2003.

The brief facts of this suit were that the plaintiff/appellant’s premises at Oregun, Lagos was threatened and in fact sealed by the Defendant/Respondent following an information received that the appellant had in stock defective cigarettes that might be harmful to prospective users. Samples of the cigarettes were taken away for the determination of the true level of spoliation by means of laboratory analysis. The sum of N660,000 was therefore demanded by the respondent from the appellant to cover the cost of laboratory analysis of the product samples impounded. The plaintiff/appellant therefore filed the originating summons wherein it sought for the determination whether the defendant/respondent had the statutory powers to regulate the appellant’s activities, while at the same time sought remedial interim reliefs against the respondent.

The trial court refused the appellant’s application for the interim reliefs. Before hearing of the motion on notice for the interlocutory injunction however, the respondent filed a preliminary objection contending that the statutory condition precedent for the commencement of the suit against the respondent was not satisfied by the appellant before the action was filed. The learned trial court on the 19th May 2003 upheld the respondent’s preliminary objection to the competence of the suit on the ground of failure to serve a pre-action notice. It is against the said ruling of the court that the appellant now appeals.

By a notice of appeal dated 30th June and filed on the 9th July, 2003, the appellant filed three grounds of appeal. In accordance to the rules of court, briefs were exchanged by the parties with the appellants brief dated 20th September, 2004 and deemed filed and served on the 9th December, 2004.

On the 15 November, 2006, when the appeal was called up for hearing the learned appellant’s counsel Mr. Oyefuso adopted their said brief of arguments wherein he tied their issue no 1 to ground of appeal No. 1 and issue 2 to grounds 2 and 3. In his submission before us, the learned appellant’s counsel argued that no formal notice was served on the respondent because the case falls under an exceptional circumstance as provided for under the case laws. In otherwords, with an injunction being sought at the lower court, that there could have been no opportunity or room for settlement of parties in this case.

On issue No.2, in his oral arguments the learned counsel conceded the constitutionality of pre-action notice but that the authorities cited should not form a precedent in this matter in view of its peculiar nature. Counsel in support cited the case of Clement v Iwuayanwu (1989) 3 NWLR (Pt 107) page 39. That in view of the coercive nature of the respondent applying the principles stated in the authorities where pre-action notices are constitutional, the application of same would work injustice on the appellant who had no opportunity for any settlement but whose remedy lies in the court for an urgent injunction to be issued. That insisting on pre-action notice in this circumstance would be unconstitutional as it would deny the appellant an urgent remedy.

Counsel urged the court to therefore allow the appeal.

The learned respondent’s counsel Mr. Emeka Oji drew the court’s attention to their supplementary record filed on the 19th May, 2004. In adopting the issues, counsel related that while their issue No. 2 is the same as appellant’s issue 1, their issue No. 1 is however different and predicated on ground 3 of the grounds of appeal.

Learned counsel on his oral substantiation of issue No. 1 emphasized the case of Mobil Producing (Nig) Unlimited v LASEPA 2002 (18) NWLR part 798 page 1. That the record of appeal showed that they did challenge the competence of the suit by preliminary objection at pages 55 – 56. That the trial court was right in striking out the action of the appellant for failure to meet the provision of section 26(1) of NAFDAC Decree 15 of 1993.

That contrary to the contention of the appellant’s counsel, the intention of pre-action notice did not deny their client access to court.

That the appeal, he argued, should be dismissed therefore with costs.

With reference to the briefs of the parties, each has formulated two issues for determination. That of the appellant reproduced state as follows:-

(1) Whether the peculiar facts of this case constitute an exception to the judicial authorities that have held that non-service of a statutory pre action notice renders the suit incompetent.

(2) Whether in view of the Respondents’ threat of harm to the appellants’ business, the strict operation and application of S.26(1) of the National Agency for Food Drugs Administration and control (“NAFDAC”) Decree Number 15 of 1993 to the circumstances of the appellant’s case constitutes denial of the Appellant right of access to courts.

With the respondent equating its issue no 2 the same as the appellant’s issue 1, it would be pertinent to therefore only reproduce the said respondent’s 1st issue which the counsel submits as different. The said same which reads as follows:-

2. Whether the interpretation of the provisions of S.26(1) of the NAFDAC Decree No 15 of 1993 in favour of the Defendant/Respondent by the lower court constituted a denial of Plaintiffs/Appellants right of access to the courts.

On the critical analysis of all the issues formulated by parties, it is apparent that the appellant’s first issue recognises the general rule that non-service of a statutory pre-action notice renders a suit incompetent. However the issue urges and advocates for the dispensation with the general rule requirement, in view of the peculiar facts of this case, which should serve an exception.

The purport of the appellant’s issue no 2 is to expatiate on the 1st issue wherein the “peculiar facts” are highlighted and which relates to the “respondents threat of harm to the appellants business” thereby alleging the application and operation of the NAFDAC provision as unconstitutional. The construction and interpretation of the foregoing analysis would in my view subsume and incorporate the intention of the respondent’s issue No.2,. The cumulative deduction of all the issues formulated by both parties therefore could in my humble view be accommodated and be taken together. This would certainly be of great convenience to forestall the overlapping which invariably cannot be exercised, one from the other, and thus avoiding repetition.

For the substantiation of the 1st issue raised, the appellant’s foundational argument centred on the analysis of the legal significance, essence and/or purpose of the pre-action notice requirement contained in S.26 of the NAFDAC Decree and such similar provisions. In the critical interpretation of the said section 26 therefore, reliance was sought to be made on the following authorities of Mobil Producing (Nig) UNLTD v LASEPA (2002) 18 NWLR (Pt. 798) page 1; Nigerian Ports Plc v Ntiero (1998) 6 NWLR (Pt.555) 640; Atolagbe v Awuni (1997) 9 NWLR (Pt.522) p.536. Amadi v NNPC (2000) 10 NWLR part 674 p. 76 and Clement v Iwuayanwu (1989) 3 NWLR (pt 107) p. 39.

Counsel submitted that a proper interpretation of the law cannot be based on legal issues formulated from the intention of the legislature without a consideration of the peculiar or general circumstances contemplated by the law maker. In otherwords, that decisions based on general circumstances contemplated by the legislature cannot serve as precedents for other peculiar circumstances which are either contemplated or not. Counsel argued that in the interpretation of statutes, the essential attributes of any given law must be considered relating to the basic statement, text or wording of the law reflecting a command on the one hand, and on the other, the intention behind the text reflecting the purpose of the law. That a command element is inferred from an interpretation of what the rule says while the purpose element is inferred from an interpretation of why the rule says what it says.

Further more Counsel argued, that the two elements must co-exist for a statute to become enforceable and applicable to any circumstance or set of facts for determining the applicability of a law to a given situation. That while the command element in S.26 of the NAFDAC Decree is unambiguous in clearly and unequivocally stating the prerequisite of service of a pre-action notice by a prospective plaintiff, the purpose element has not been stated. Learned counsel emplored the court to adopt a construction which will promote the general legislative purpose underlying the provision in question rather than a construction which restricts the application to a particular set of facts. Counsel relied on the pronouncement made by Lord Denning L.J, the great jurist, in Magor & St. Mellons PDC v Newport Corporation (1950) 2 All ER 1226 at 1236.

That despite the mandatory nature of S.26 of Decree No.15 of 1993, the circumstances relating to the threat to seal the business premises of the appellant, for the second time, had created an impossible situation for compliance with the statutory provision and the reason: compelling the appellant to immediately seek interim injunctive reliefs by filing the suit. To buttress the submission made, learned counsel cited the authority in the case of Attorney-General Anambra State v Eboh (1992) 1 NWLR (pt.218) 491 at 509. Further reference was also made to Flower v. Board of Low Leylon(1877) 5 Ch. D. p.347 and Attorney- General v Hackney Local Board Law Report 20 Eq. 626. That the English Judicial Authorities had established an exception to the pre-action notice, and consequent to which the respondent cannot now seek to rely on the statutory provision to cover its arbitrary act. That for a party to seek to rely on any benefit so conferred by statute, he must be standing on a foundation of fairness and equality and not subterfuge. That the respondent’s attempt is to overreach the spirit and intention of the statute by using this benefit/advantage as a sword of oppression rather than a legal shield in the interest of public policy.

Counsel further submitted that by its arbitrary and hostile disposition the respondent had altered its position and constrained the appellant to alter its de jure position by filing a suit without complying with the law. That having regard to the Supreme Court authorities under reference supra, learned counsel argued that claims can arise only from facts and circumstances and not in vacuo. That any fact and circumstance not on all fours and forming the bases of established judicial precedents, cannot in law form the basis for a decision in a case in issue. That if the facts are on all fours and pot the issues, the ‘principle would be inapplicable and vice versa. Reference in support was made to the cases of Fawehinmi v. Nigerian Bar Ass. (No.2) (1989) 2 NWLR (pt 105) 558 at 649; and Clement v Iwuayanwu (supra). The counsel argued the ,distinctive nature of the authorities as against the matter at hand as it constitutes an exception to the application of the statutory provision.

Issue No.2, poses a question whether considering the nature of the threat of harm to the appellant’s business, by the respondent, the strict operation and application of S.26(1) of NAFDAC Decree constitutes a denial of the appellant’s right of access to the courts?

In defining “Access to court” learned appellant’s counsel cited the case of Amadi v NNPC (2000) 10 NWLR (pt.674) 76 at 110 – 111 where it was held as an approach or means of approach to court without restraint. That the combined purport of S.6 (6) (b), providing for judicial powers of the court and S.36, providing for the right to; fair hearing in the constitution of the Federal Republic of Nigeria 1999, is to facilitate the right of access to court without legal obstacles that may neutralize the exercise or that right. Learned counsel therefore argued as inconsistent the making of regulations which in operation subvert the exercise of the right or render the right nugatory. Reference to buttress the submission was made to the case of Amadi v NNPC supra at 109/110 per Uwais J.S.C. Also the case of Bakare v Attorney-General of the Federation (1990) 5 NWLR (pt 152) P.516 at 535.

Counsel on the totality submitted that the strict operation of the statutory provision to the peculiar facts and exceptional circumstances of this case would constitute an improper obstacle to the appellant’s right of access to court and thus infringe on its right to fair hearing as contained in S.36 of the constitution supra. That the application of the pre-action notice provision to the circumstances of this case would inhibit the appellant from having access to the courts and thus contrary to S.6(6)(b) of the constitution. Counsel urged us to therefore allow the appeal and set aside the ruling of the Federal High Court Lagos and to further order a continuation of the appellant’s suit before another judge of the Federal High Court, Lagos. In response to the appellant’s 1st issue, the learned respondent’s counsel recapitulated and reflected on that which transpired before the lower court and submitted the erroneous interpretation by appellant’s counsel especially of the cases of Mobil Producing (Nig) Unlimited v Lasepa supra, and also the case of Shaibu v Naicom (2002) 12 NWLR part 780 page 116. Deliberating on the said authorities, counsel applauded the lower court in striking out the case of the plaintiff/appellant for non compliance with the provision of S.26 (1) of the NAFDAC Decree 15 of 1993.

In answer to issue No.2 however, the said counsel again relied on the case of Mobil Producing (Nig.) Unlimited v Lasepa (supra). Further related authorities were the cases of Ngelegla v. Tribal Authority Nongowa Chiefdom (1953) 14 WACA 325, 327; Nigerian Ports Plc. v. Ntiero (1998) 2 NWLR (pt.555) p.640; Atolagbe v. Awuni (supra) and Amadi v. NNPC also under reference supra and re-iterated that in sum total the intention of a pre-action notice is not to deny access to the courts as wrongly submitted by the appellant’s counsel. He therefore urged for the striking out of the appeal with costs.

It is not an issue in the matter of this appeal that the appellant is in breach of the provision of Section 26 (1) of the NAFDAC Decree NO.15 of 1993 as amended and therefore requiring a pre-action notice to be served on the respondent. This was admitted in their counter affidavit to the defendant/respondent’s notice of preliminary objection dated 3rd April, 2003 vide paragraphs 21 and 22 at page 60 of the record of appeal. It is obvious therefore that the appellant is not denying the general rule that a pre-action notice is necessary and ought to be given. The contention however, is to the effect that in the circumstance of its case, same operates as an exception to the general rule requiring the giving of a pre-action notice, which insistence would constitute a denial of the appellant’s right of access to court. The sustenance or not of the appellant’s argument is dependant on the interpretation of Section 26(1) of the enabling Decree No.15 of 1993 as expounded in the various judicial authorities. Section 26(1) of the NAFDAC Decree provides as follows:-

“S.26(1) No suit shall be commenced against the Agency before the expiration of a period of one month after written notice of intention to commence the suit shall have been served on the Agency by the intending plaintiff or his agent and the notice shall clearly and explicitly state –
(a) the cause of action;
(b) the particulars of the claim;
(c) the name and place of abode of the intending plaintiff; and
(d) the relief which he claims.”

The whole idea and purport of a pre-action notice is for the purpose of reparation. In other words to bring fully the grievance of the appellant to the notice of the respondent, who would be in a position to decide whether or not to settle and compromise the appellant’s claim, or allow the matter to go to court. The discretion of the benefit or advantage of the provision lies squarely with the respondent, who reserve the right to either invoke it or not. The nature and purpose of the concept has been well expounded by their Lordships of the apex court in the case of Mobil Producing (Nig.) Unlimited. v Lasepa under reference supra wherein at page 36 it was said:-

“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 that 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.”

It serves a good meeting point of the two parties for purpose of a free bargain or negotiation, thus curtailing on technicalities which could result in delays in court. It is indeed a good alternative to dispute resolution and can also serve a means of a quick access to justice. With the same, emanating from the respondent, the provision is armed at serving its interest and convenience.

In a further related authority of the case of Ngelegla v Tribal Authority Nongowa Chiefdom (supra), it was held that the provision is necessitated for giving the defendant breathing time so as to enable him determine whether he should make a reparation to the plaintiff. The same proposition was enunciated and upheld in the case of Nigerian Ports Plc v. Ntiero supra.

The said section 26(1) as reproduced, uses the expression “No suit”. It further went on that such suit shall not “be commenced before the expiration of a period of one month written notice shall have been served on the Agency.”

With the combined effect of the use of the phrase “No suit” coupled up with the word “shall”, in my humble view, the collective deduction gives an impression of a situation which is limitless; of a wide uncontrolled latitude and all embracing. In otherwords it covers all suits of whatever nature, origin, type, causes of howsoever or whatsoever. On a critical analysis of the provision therefore, it gives an imperative impression, that is to say, there can be no suit instituted against the Agency without the due compliance with the three compartmental stipulations therein. In otherwords there must be a one month’s notice of intention to sue, which same must be in writing and served on the agency; a further directive also relates to what nature the notice ought to take and same in the circumstance which ought only be directory. This is apt in view of the fact that while the first two uses of “shall” are basic, static and mandatory requirements in all situations without exception, the third use of “shall” is dependent upon what stuff, nature and facts a particular suit is made of. This would obviously vary from one case to the other as particulars would all differ. While on the one hand, the use of the word “shall” in the third contexts is therefore of a changing nature it would only connote direction. To the contrary, and on the other hand, the same uses in the first two aspects are obligatory, which deviation thereof from the norm would be derogatory and attracting consequences.

Again in the case of AMADI v N.N.P.C. under reference supra, their Lordships of the apex court on the extent of applicability of pre-action notice prescribed by section 11 (2) NNPC Act held ‘amongst others and said that the provision affords an absolute protection to the corporation. They also went further and said:-

“The expression “No suit” in section 11(2) NNPC Act, 1977, has been construed in section 46(1) of the University of Ife Edict as wide and all embracing. It was construed as covering all suits and whatever causes of action and not limited to anything done pursuant to any Act or statute. It relates to all or any type of action.”

Deducing from the provision of section 26(1) of the NAFDAC Decree in issue it is apparent that the wordings are plain, clear and of a saline nature. Where the legislature therefore has used in an enactment language which is clear and devoid of any ambiguity or leaves no doubt as to its meaning, the court has no alternative but to construe the enactment in the same vein as the expressed intention.

This is more so as in the case at hand, where the provision is a condition precedent to instituting a suit against the respondent.

The learned appellant’s counsel on his submission dwelt at great length on the concepts of command and purpose elements which he argued must both be present for the purpose of enforceability and applicability of a statute to any given circumstance or set of facts. Counsel argued that one of the elements cannot be applied without the other as they serve as the fulcrum for the determination and applicability of a law to a given situation. He further argued that in the absence of purpose element specifically stated in the provision of the said section 26 of the NAFDAC Decree, resort had to be made to judicial authorities to obtain the enabling reasonings and purpose giving rise to that command which has been specifically stated. That the restricted or strict interpretation and application of the command and purpose elements to every case without a consideration of the peculiarity of each case will only serve to produce manifest absurdity. That in the absence of an unequivocal inference from a given statute accommodating only a peculiar set of facts, the court ought to adopt a construction which will promote the general legislative purpose underlying the provision in question as against a construction which restricts the application of the provision to a particular set of facts.

The learned counsel in his analysis and application of section 26 to the case at hand, submitted that the nature of the peculiar circumstance of the appellant’s case had created an impossible situation for compliance with the statutory provision. In otherwords, that in view of the hostile circumstances actuated by the respondent by its threat to seal the business premises of the appellant for the second time, an impossible situation for compliance with the statutory provision was therefore created, and which compelled the appellant to immediately seek interim injunctive reliefs by filing this suit. The question for determination, and resulting from the appellant’s contention is whether its case serves an exception to the general rule laid down in section 26(1) of the NAFDAC Decree.

In the earlier determination supra, it has been deduced that while the use of the word “shall” in the said section 26(1) of the Decree are mandatory in the first two situations, the third use is however directory, depending on the set of facts and peculiar situations of each case. This restatement obviously refutes the submission by the appellant’s counsel alleging a restricted or strict interpretation and application of the command and purpose elements in section 26( 1) of the Decree. This deduction would be made clearer in the light of the various authorities cited by both counsel in support of their submissions.

In the case of Attorney General Anambra State v Eboh, a decision of this court cited by the learned appellant’s counsel supra, for instance, Awogu J.C.A at page 509 on propriety of taking action to forestall infringement of ones right, said:-

“…it is but right to protest if one smells danger, and not to wait until the rope is tight around the neck for his execution. The trial court must, however, be sure that a genuine fear exists. Whether or not the fear is sufficiently genuine to warrant protection is a mater for trial, ….”
Underlining is for emphasis.

Also in an English judicial authority cited by the said appellant’s counsel in the case of Flower v Board of Low Leylon supra at page 349 Malins V.C on a competence of a suit filed without compliance with a pre-action notice requirement, held as follows:-

“The object of the legislature appears to me very plain. It was no doubt intended that as these boards were to have jurisdiction over very extensive districts they were not to be liable to be constantly vexed with actions, but in every complaint made against them they should have reasonable notice of the cause of action, in order that they might set themselves right in case of any wrong having been done. It is clear, therefore, that where damages only are ‘the principal object, the Act of parliament, which is similar in this respect to the words of the Metropolitan Management Act, requires that notice should be given to the local board. But it is said that this does not apply where the object is to prevent an irreparable mischief from being done; to prevent for instance, a stream from being stopped, where a speedy remedy by injunction is required, and where the object, in case of any delay, may be injurious to the person complaining. I agree in that case that the section would not apply, and an application might be brought at once for an injunction. But as the legislature has said, there is to be no writ issued without a months notice of the cause of action, I think the proper construction of the act is, that no writ should be issued without notice, except in cases of necessity…”.

It is of significance to note that in the earlier case of ATTORNEY GENERAL ANAMBRA STATE, for the “smell of danger” to amount to a genuine fear, the determination of same and its certification ought be made by the trial court itself, who has the duty to ascertain its sufficiency from the circumstances of the facts before it. Comparatively and in the latter case of BOARD OF LOW LEYLON the applicability of a notice would be dispensed with in situations “where the object is to prevent an irreparable mischief from being done:”

The danger must be such that preservation is being put, at stake. Such is not the case at hand especially where the fear entertained was a threat “to seal the business premises of the appellant for the second time”. The purpose and aim of law is to serve the same concept in all human endeavors. It is immaterial therefore whether the application is in England, Nigeria, America or wheresoever. The set goal to be achieved must be one, the same and the only one. It is needless to restate that the goal is to do justice without fear or favour to all manner of persons in all spheres of life and situations.

It is not surprising therefore that both the English and the Nigerian authorities have the same underlying intent. In otherwords, that where under our law a situation of an impending fear ought to be determined by a trial judge, the English law situational equivalent is where the inapplicability is to prevent an irreparable mischief.

In both situations, there ought to be a determinant factor to serve a pre-requisite in doing away with notice which cannot be as a matter of course. There must be an impending danger of such a state of no return or of a total destruction of the subject matter.  The purpose and function of the law from all perspective, is to preserve.

The “determinant factor provision” serves as a caveat as it is necessary to forestall an abuse thereby defeating the very purpose, aim and purport of the very provision and thus making nonsense of same and of no effect. This, certainly is not to destroy the analysis of the legislative enactment as contended by the appellant in seeing to rely on the pronouncement made by Lord Denning in MAGOR & ST. MELLOUS RDC v. NEWPORT CORPORATION supra wherein he held that judges are to make sense by their interpretation of legislative enactments. The reliance of counsel on that authority therefore was a total misconception and misapplication especially where he argued a lack of consideration of the peculiar facts thus resulting into an inherent lacuna.

A further related authority is the case of NNPC v. Fawehinmi (1998) 7 NWLR pt. 559 p.598 also cited by the learned appellant’s counsel wherein Pats-Acholonu JCA (as he then was and of blessed memory) at p.623 amongst others said as follows:-

“Consider for example a situation where a corporate body set up by a statute has done, or is on the verge of doing an act that is considered inimical to the interest of the other citizen, the situation being such that ordinarily an injunction quia timet of ex parte nature might be taken to avert the looming imminent danger. If there is a provision that there should be a notice of 1 month or 3 months as the case may be, then some harm perhaps of irremediable nature might have been done. Our constitution should be liberally construed to make it accommodate areas that likely to cause friction. It is doubtful whether such state of affair, that is giving one month or 3 months notice, could possibly be within the contemplation of the frame of the constitution…”

The said decision relates to two areas of consideration. The first aspect is where despite a provision of pre-action notice, an injunction, even of an exparte nature would be appropriate subject however to an ‘impending event for the purpose of averting a “looming imminent danger which may result into some harm “perhaps of irremediable nature.” This serves a confirmation of the pre-condition restated in the case of Attorney General Anambra State v Eboh (supra).

The appellant counsel’s further submission related to the need of literal interpretation and the construction of the said Section 26(1) in the light of the constitution of the Federal Republic of Nigeria 1999, which he argued constitutes a denial of the appellant the right of access to the courts. In otherwords, that the regulation provision is constitutionally inconsistent with Sections 6(6)(b) and 36 which provides for judicial powers of the court and the right to fair hearing respectively. Learned counsel therefore argued the appellant’s case as serving an exception to the general rule provided in Section 26(1) of the said NAFDAC Decree.

For the argument by the appellant’s counsel to hold grip and substance, same must logically follow that the case falls outside the scope and purport of the ambit of the earlier interpretation given to section 26(1) of the decree thereof. The phrase “access to court” has been defined by the apex court in the case of AMADI v NNPC supra, wherein their Lordships per Karibi-Whyte JSC at page 111 said:-

“Access to the court means approach or means of approach to the court without constraint.”

In the said authority under reference, the complaint was in respect of a defect in the pre-action notice wherein the appellant omitted to state the name and address of the intending plaintiff. In otherwords that the notice served was defective. Their Lordships held as in-equitable to regard such a situation as an equivalent to absence of notice. At page 111 of the report for instance they said:-

“…The omission cannot be an essential precondition for commencing an action against the corporation where a solicitor or agent is required for service…For a non compliance to be sufficient to deprive the court of its jurisdiction, the condition should be such as to make it difficult for the corporation to make its choice whether to settle with the plaintiff. Any other non compliance is in-substantial and should not deprive the court the exercise of its constitutional jurisdiction or deny the plaintiff access to the courts on the facts before the court. The mere omission to provide the address of residence of the plaintiff should not be fatal to the claim.”

Without having to belabour the issue, the authority of AMADI v NNPC supra, is remarkably distinguishable from the case at hand wherein the pre-action notice was not at all given in this case.

Amadi’s case also serves a confirmation of the third use of the word “shall” in the interpretation of section 26(1) of the Decree earlier made supra, wherein the word serves only a directive purpose and not imperative.

Again and for purpose of further recapitulation, I would emphasize that the essence of a pre-action notice is to serve a condition precedent and which must be fulfilled before an action can be instituted. That is to say one which delays the vesting of a right pending a happening of an event. The provision is peculiar in that, it operates to serve the interest of the defendant and should not therefore be confused with the citizen’s impending ready access to court, as it serves only as a pre-constitutional regulatory access to court. It is pertinent to restate firmly that any statutory provision which is aimed either at singling out a class or category of persons for special privileges for the purpose of protection from any exercise of the court’s constitutional jurisdiction, to determine the right of another citizen, would undoubtedly be inconsistent with the provision of Section 6(6)(b) of the constitution. This is not the case in the matter under consideration in this case.

The learned appellant’s counsel again relied on the authority of Bakare v Attorney General of the Federation supra, wherein the court held in respect of the intendment of S.6(6)(b) of the constitution 1979, which is to “confer jurisdiction on the courts and…to provide access to the courts, to persons who may have any contention on “all matters” as between them and government or any authority or any person.”

The said authority with all respect to the learned counsel for the appellant, cannot be interpreted as being in contradiction to Section 26(1) of the Decree. This is more so especially having regard to the authority in the case of Atolagbe v. Awuni cited supra. At page 566 of the report on the effect of Section 15 of Edict 3 of 1988 of the Chiefs (Appointment and Deposition) Law of Kwara State which is in pari materia to S.26(1) of the NAFDAC Decree 15 of 1993, their Lordships of the apex court again had the following to say:-

“Section 15 of Edict No.3 of 1988 does not curtail the right of a person to sue in a Chieftaincy matter as enshrined in the provision of Section 6(6)(b) of 1979 constitution…condition precedent ordered to be done before a  litigant is entitled to sue, by reason of the provisions of some statute is not an ouster clause…It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to the courts, it is not contrary to Section 6(6)(b) of 1979 ‘Constitution.”

It is obvious from the decided authorities that the provision of the Decree is merely procedural or adjectival and stipulates a condition precedent which a litigant must fulfil before coming to court for redress – this was the view taken by Onu JSC in Atolagbe v Awuni supra.

I agree entirely with the learned respondent’s counsel on his submission therefore that S.26 (1) of the NAFDAC Decree 15 of 1993 did not curtail the right of a person to sue. This is because it merely lays down a condition precedent consequent to an institution of an action. It does not in other words, constitute an infringement of the exercise of judicial power by the courts or abridge the citizen’s right of access to court amounting to an inconsistency with the constitution. The two issues in the circumstance are therefore both resolved against the appellant.

In the result and on the totality of this appeal, same lacks merit and is hereby dismissed. The ruling of the learned trial judge in striking out the plaintiff/appellant’s case for non-compliance with the provisions of S.26 (1) of NAFDAC Decree No.15 requiring a one month pre-action notice of intention to commence proceedings against the defendant/respondent is hereby affirmed.

With costs following events, the sum of N10,000 is awarded in favour of the respondent.

Appeal dismissed with N10,000 costs to the respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I have been privileged to read in advance the beautifully crafted lead judgment just delivered by Ogunbiyi, J.C.A. and I agree with both her reasoning and conclusions. It is of course correct to conclude as the appellant has, that the decisions of this court and the Supreme Court on the mandatriness and the constitutionality of pre-action notice provisions in different statutory provisions can invite exceptions. These would be where irreparable damage would be done if the prospective plaintiff was to issue the notice and wait out the statutory period before accessing the courts. A typical example would be where life and limb is threatened. In the present case, the payment of the fees demanded by NAFDAC cannot constitute such irreparable damage, as the fees paid are easily recoverable on successful prosecution of the suit challenging it.

I also dismiss this appeal with N10,000 costs to the respondent.

ADZIRA GANA MSHELIA, J.C.A.: I read before now the draft of the lead judgment delivered by my learned brother Ogunbiyi, JCA. I entirely agree that this appeal lack merit and ought to be dismissed. Despite the mandatory nature of S.26(1) of NAFDAG DECREE reproduced supra in the lead judgment, it does not constitute an infringement of the exercise of Judicial power by the courts or abridge the citizen’s right of access to court amounting to an inconsistency with the constitution. The essence of pre-action notice is to serve as a condition precedent and which must be fulfilled before an action can be instituted. In the instant case the learned trial Judge was right in striking out the Plaintiff/Appellants case for non-compliance with the provisions of 8.26(1) of NAFDAC DECREE 15 of 1993 requiring a one month pre-action notice of intention to commence proceedings against Defendant/Respondent.

For this and the much fuller reasoning of my learned brother Ogunbiyi, JCA. I too dismiss the appeal. I abide by the consequential orders made in the lead judgment including order as to costs.

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