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Hon. Justice Olufunke Anuwe of Abuja Judicial Division of the National Industrial Court has struck out the case filed by one Badiru against Nigeria Immigration Service and Its Comptroller-General for being incompetent.
Justice Anuwe held that the failure of Badiru to serve a pre-action notice in accordance with the Nigerian Immigration Service Act before instituting action in court against the Nigerian Immigration Service or any of its authorized officers renders the suit incompetent.
From facts, the claimant- Badiru had submitted that while he was carrying out his lawful schedule of official duties he was attacked by a senior staff of the Nigeria Immigration Service.
Badiru said as a result of the incident, he sustained internal injury and was hospitalized several times and he treated himself at his expense without any form of care whatsoever from the Nigeria Immigration Service and Its Comptroller-General who are supposed to protect his interests and protect him against all forms of attack in the discharge of their duties.
Badiru averred that in reaction to the pre-court action notice that he served on the Nigeria Immigration Service and Its Comptroller-General, the Service issued him another query reference and commenced another disciplinary action against him and he was disallowed from writing the year 2021 promotion examination on the ground that he was under disciplinary procedure.
In defence, the defendants- Nigeria Immigration Service and Comptroller-General, Nigeria Immigration Service averred that the query issued to Badiru was due to alleged misconduct and acts unbecoming of a public officer contrary to provisions of the Public Service Rules and not because of the pre-action notice he served on them.
The Nigeria Immigration Service contended that the Court lacks jurisdiction to entertain the suit and accordingly prayed the Court to dismiss the suit on the ground that Badiru had failed to serve the prerequisite pre-action notice before commencing the case and further that the suit declaration and all the reliefs in the suit are the same with the Judgment the court delivered on 11th December 2023; and that the case has the same reliefs and same parties as in the cases pending before the National Industrial Court, Lagos Division and the Federal High Court, Lagos.
In opposition, the learned counsel to Badiru maintained among others that his client served a Pre-action Notice on the Defendants before the commencement of the suit, and urged the court to dismiss the objection in its entirety.
In a well-considered judgment, the Presiding Judge, Justice Olufunke Anuwe stated that none of the reliefs sought in the cases delivered was the same as the reliefs sought in the suit filed by Badiru, and therefore held that the subject matter of Badiru’s case before the Court is different from the one pending in Lagos Division and the Federal High Court.
On the service of pre-action notice, Justice Anuwe held that by virtue of the Immigration Act, it is mandatory that a person who intends to institute an action against the Nigerian Immigration Service or its officers to first serve a pre-action notice on the Nigerian Immigration Service and allow 30 days to lapse from the date of service of the notice before the suit can be instituted against the Nigerian Immigration Service or its officers.
Justice Anuwe reiterated that non-service of pre-action action notice, where it is statutorily required, is a matter which affects the jurisdiction of the court to entertain a suit instituted without service of pre-action notice.
The Court held that Badiru who alleged that he served a pre-action notice before commencing the case failed to produce the said pre-action notice. Justice Anuwe held that since Badiru did not meet the requirement of the law by his failure to serve a pre-action notice on the defendants before he filed this action to challenge the disciplinary action commenced against him, the suit is incompetent and the jurisdiction of the court to entertain it has not been properly invoked.
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