IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: JULY 12, 2024                                    SUIT NO. NICN/ABJ/76/2024

BETWEEN                                

1.     NR. DESMOND AIGBE

2.     NR. KELVIN OSSAI

3.     NR. CATHERINE OLATUNJI- KUYORO

4.     NR. TAMUNOIBI BERRY                                                  CLAIMANTS

5.     NR. OSEMWENGHE OSAGIE

6.     NR. ABIOLA OLANIYAN

7.     NR. IDOWU OLURANKINSE

AND

1.     REGISTRAR, NURSING AND MIDWIFERY

COUNCIL OF NIGERIA (NMCN)

2.     NURSING AND MIDWIFERY COUNCIL

OF NIGERIA (NMCN)

3.     COORDINATING MINISTER OF HEALTH                       DEFENDANTS

AND SOCIAL WELFARE

4.     FEDERAL MINISTRY OF HEALTH

5.     ATTORNEY GENERAL OF THE FEDERATION

AND MINISTER OF JUSTICE

REPRESENTATION

E.A. Odeh for the Claimant, with Adelewa Williams, Bashman Mohammed.

Adeleke Agbola SAN, for the 1^st & 2^nd Defendants, with O. Abidakun, C.J. Onuegbu.

Ejike Orji (Asst Chief State Counsel) for the 3^rd & 4^th Defendants.

Olubanke Odulana (Asst Chief State Counsel), D.O.Tarfa (Mrs) for the 5^th Defendant.

RULING

Introduction and claims

[1] The Claimants commenced this action by originating summons on 4^th March  2024  praying for the determination of the following questions:

1. Whether having regards to the construction of Section 1(2) of the Nursing and Midwifery (Registration) Act, or any known law/Regulation in force in Nigeria which empowers the 1st & 2nd Defendants to make rules regulating the training, registration and licensing of nurses to practice the nursing profession, the 1st & 2nd Defendants can elegantly expand its scopes and powers and impose two (2) years post qualification experience on the Claimants seeking Verification of Certificate(s) issued to foreign Nursing Boards/Council for the purposes of inhibiting the Claimants’ rights from practicing abroad contrary to Articles 3 & 4 of the International Labour Organization’s Conventions for Migration for Employment Convention?

2. Whether given the provision of Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 which guarantees the Claimants’ to freedom of movement within and exit from Nigeria, the 1st and 2nd Defendants’ “Revised Guidelines” of 7th February, 2024 which seeks to restrict the Claimants from acquiring further skills, training and career opportunities abroad is not unlawful, arbitral and unconstitutional?

3. Whether given the provision of Section 34 of the 1999 Constitution which guarantees the Claimants’ rights against forced and compulsory labour, the 1st and 2nd Defendants’ “Revised Guidelines” of 7th February, 2024 which seeks to impose two years work experience on the Claimants before their Certificate could be verified by the 1st and 2nd Defendants is not unlawful, arbitral and unconstitutional?

4. Whether having regards to Section 1(2) of the Nursing and Midwifery (Registration) Act which empowers the 1st & 2nd Defendants to make rules regulating the training, registration and licensing of nurses and midwives to practice the nursing profession, the 1st & 2nd Defendants can lawfully reject nurses with provisional license from seeking for Verification of Certificate issued to foreign Nursing Boards for the purposes of restraining the constitutional rights and freedom of nurses and midwives in Nigeria from emigrating the country to seek career opportunities abroad?

5. Whether having regards to Section 1(2) of the Nursing and Midwifery (Registration) Act which empowers the 1st & 2nd Defendants to make rules regulating the training, registration and licensing of nurses and midwives to practice the nursing profession, it is not unreasonable and irrational for the 1st & 2nd Defendants to request a letter of Good Standing from the Chief Executive Officer of applicant’s place of work and the last nursing training institution attended for the purpose of Verification of Certificate and thereby inhibiting the constitutional rights and freedom of nurses and midwives in Nigeria from migrating the country to seek career opportunities abroad?

6. Whether having regards to Section 1(2) of the Nursing and Midwifery (Registration) Act which empowers the 1st & 2nd Defendants to make rules regulating the training, registration and licensing of nurses and midwives to practice the nursing profession, it does not amount to abdication of responsibility for the 1st & 2nd Defendants to take a minimum of six (6) months to verify a certificate issued by the 2nd Defendant to nurses and midwives, considering the fact that all its certificate verification processes has been digitized, made efficient and timely?

7. Whether having regards to Section 12 of the Nursing and Midwifery (Registration) Act which provides for continuous education of nurses and midwives, it is not unthoughtful and irrational for the    1st & 2nd Defendants to impose two (2) years post qualification experience on all nurses and midwives seeking for Verification of Certificate(s) issued to foreign Nursing Boards before they can travelled abroad for further training and improve their nursing skills and health care knowledge abroad?

8. Whether having regards to Ss. 1(1), 2 & 4 of the Freedom of Information Act which gives citizens legal rights to access official records held by government institutions/departments within seven days of request, it is not illegal and utra vires the powers of the 1st & 2nd Defendants to make a policy that verification of certificate by applicant must takes a minimum of six (6) months?

[2] Upon the determination of the questions in favour of the Claimants, they are seeking the following reliefs against the Defendants jointly and severally:

1. A declaration that the Defendants lack the powers and vires to impose two (2) years post qualification experience on nurses and midwives seeking for Verification of Certificate(s) issued to foreign Nursing Boards/Council for the purposes of inhibiting the Claimants’ rights from practicing abroad.

2. A declaration that the Defendants cannot lawfully and validly reject nurses with provisional license from seeking for Verification of Certificate issued to foreign Nursing Boards for the purposes of restraining the constitutional rights and freedom of nurses and midwives in Nigeria from emigrating the country to seek career opportunities abroad.

3. A declaration that it is unreasonable and irrational for the Defendants to request a letter of Good Standing from the Chief Executive Officer of applicant’s place of work and the last nursing training institution attended for the purpose of Verification of Certificate and thereby inhibiting the constitutional rights and freedom of nurses and midwives in Nigeria from emigrating the country to seek career opportunities abroad.

4. A declaration that it amount to abdication of responsibility for the 1st Defendant to take a minimum of six (6) months to verify a certificate issued by the 2nd Defendant to nurses and midwives, considering the fact that all its certificate verification processes has been digitized.

5. A declaration that it is unlawful and ultra vires the powers of the 1st & 2nd Defendants to make a policy that verification of certificates by applicant must takes a minimum of six (6) months?

6. An order of the Honourable Court quashing in its entirety the 1st & 2nd Defendants’ circular captioned, “Revised Guidelines for Verification of Certificate(S) with The Nursing and Midwifery Council of Nigeria” dated 7th February, 2024 for being unreasonable, unconstitutional and therefore void and null and of no effect whatsoever.

7. An order of perpetual injunction restraining the Defendants, their agents, servants, privies, assigns, or by whatsoever name called, from taking any further step that may hinder, restrict or infringe on the constitutional rights and freedom of nurses and midwives in Nigeria from emigrating the country to seek better career opportunities and training abroad.

8. An order of the Honourable Court mandating the 1st & 2nd Defendants to carry out verification of certificates or any documents requested by applicants within 7 days from the date of such application.

9. The Sum of N20,000,000 (Twenty Million Naira) as  Cost of this action.

10. And such further order or others orders as this Honourable Court may deem fit to make in the circumstances of this case

[3] The 1^st and 2^nd Defendants entered a conditional appearance on 19^th March 2024 and filed along with it a Notice of Preliminary Objection. The 3^rd and 4^th Defendants entered a conditional appearance on 18^th March 2024 and also filed a Notice of Preliminary Objection. At the hearing on 20^th May 2024, the Court heard both objections, and this Ruling is in respect of both objections.

[4] The Notice of Preliminary Objection filed by the 1^st and 2^nd Defendants is dated March 19, 2024. It is brought pursuant to Order 17 Rule 1 (9) of the Rules of Court 2017, Sections 6 and 251 of the 1999 Constitution (as amended), Section 1 (2) of the Nursing and Midwifery (Registration Etc,) Act LFN 2024, Section 24 of the Nursing and Midwifery (Registration, Etc) (Amendment) Act, 2022 and the inherent jurisdiction of this Honourable Court. The 1^st and 2^nd Defendants are praying the Court for the following:

1. An Order of this Honourable Court dismissing this suit in limine for lack of jurisdiction.

In the Alternative:

2. An Order of this Honourable Court striking out this suit for the lack of disclosure of cause of action against the Defendant/ Applicant.

3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this case.

[5] The grounds upon which the Objection is premised are:

a)    The Plaintiff failed to issue the statutory pre-action notice to the Defendants as required in Section 24 of the Nursing and Midwifery (Registrations, Etc) (Amendment) Act, 2022.

b)    The Claimant have disclosed no reasonable cause of action against the Defendants.

c)     The 2^nd Defendant/ Applicant is an agency or servant of the Federal Government of Nigeria established by the Nursing and Midwifery (Registration etc) Act, Cap N. 143, Laws of the Federation of Nigeria, 2004.

d)   All suits against the Federal Government or any of its agencies seeking declaratory or injunctive reliefs against the Federal Government or its agencies must be commenced at the Federal High Court.

e)    The issue involved in this matter relates to the performance of the statutory duties of the 1^st & 2^nd Defendants/ Applicants.

f)      The Claimants lack the locus standi to institute this matter.

g)    The Claimants are not an employee of the Defendant and is not a registered trade union.

h)   The entire suit constitutes an abuse of Court process.

i)      It will be in the interest of justice if the suit of the Claimants is struck out to save the judicial time of this Honourable Court.

j)      This Honourable Court has the inherent power to strike out/ dismiss this suit for want of jurisdiction to entertain same.

[3] The Objection is supported by a 13-paragraph affidavit deposed to by one Madina Gogo Bello, Legal Officer in the office of the 1^st and 2^nd Defendants/Applicants and a written address. The Claimants filed a counter- affidavit on April 16, 2024 deposed to by the Nr. Kelvin Ossai the 2^nd Claimant to which is annexed 4 exhibits and a written address. The parties adopted their written addresses and made oral submissions.

Submissions of 1^st and 2^nd Defendants

[6] Learned counsel to the 1^st & 2^nd Defendants submitted four issues for determination:

1. Whether the Plaintiff’s action is competent having failed to issue pre-action notices on the Defendant as required in section 24 of the Nursing and Midwifery (Registrations, Etc) (Amendment) Act, 2022?

2. Whether the Claimant has the locus standi to institute this action?

3. Whether the Claimants have disclosed a reasonable cause of action against the Defendant?

4. Whether this Honourable Court has the jurisdiction to entertain this matter relating to statutory powers of the Defendant to regulate and control the practice of nursing and midwifery in Nigeria?

[7] Learned Senior Counsel to the 1^st and 2^nd Defendants/ Applicant in arguing issue one submitted that the requirement of pre-action notice is mandatory and it is a condition precedent to the commencement of an action and non-compliance therewith renders the action incompetent and robs the court of jurisdiction to entertain the suit. He relied on Nnonye v Anyiche (2005)1 SC (Pt.II) 96 at 103 and 104, Public & Private Development Centre Ltd/GTE (PPDC) v NNPC (2020) LPELR-50288(CA) at (Pp 10-16, paras D-C), Noclink Ventures Ltd & Anor v Aroh & Anor (2007) LPELR-4631(CA).

[8] Learned Senior Counsel on issue two submitted that there is nothing before the Court to show any connection between the Claimants and the 1^st and 2^nd Defendants, neither is there anything to show how the Claimants will be affected by the circular issued by the 1^st Defendant. He submitted that locus standi is a condition precedent to the court’s exercise of jurisdiction over a matter as it is fundamental and goes to the root of the action. He cited Madukolu v Nkemdilim (1962) 2 SCNLR 341; Eke v Military Administrator, Imo State (2007)13 NWLR(Pt.1052)531 at 550-551, Daniels Industries Incorporated& Anor v Rebold Intl Ltd (2015) LPELR-40986 (CA).He cited Senator Adesanya v President FRN & Hon Justice Ovie Whisky (1981) 5 SC 112 and Adeoye & Ors v Adegoke (2014) LPELR-22423 (CA) for the definition of locus standi.  He submitted that the Claimants case have failed to show how the circular issued by the 1^st and 2^nd Defendants affected or will affect them personally, and that they lack the locus standi to institute this case.

[9] Learned Senior Counsel on issue three, cited Iyeke v PTI (2019) 2 NWLR (Pt 1656) 217 at 239, Ajuwon v Gov Oyo State [2021] 16 NWLR (Pt 1803) 485 for the meaning of cause of action. He submitted that the depositions in the Claimants’ affidavit in support of the originating summons does not disclose any cause of action vested in the Claimants, and that a comprehensive reading of the said affidavit clearly shows that the cause of action is vested in general public. That this shows therefore that there is no existing dispute between the Claimant and Defendant. He further submitted that examining the relevant laws and statutes governing the operations of the 1^st & 2^nd Defendants, it is clear that they have the power under their enabling law which is the Nursing & Midwifery (Registrations, etc) Act in regulating and controlling the practice of the profession in all its ramifications. He relied on Section 1(2) (c ) of the enabling law. He further argued that the same Act enables the 2^nd Defendant to maintain discipline in the profession. He therefore submitted that the Claimants have failed to disclose or establish any reasonable cause of action against the 1^st and 2^nd Defendants.

[10] In arguing issue four, Learned Senior Counsel submitted that the appropriate Court empowered to hear this suit as presently constituted is the Federal High Court as the case relates to matters in which section 251(l) (r ) of the 1999 Constitution vest exclusive jurisdiction in the Federal High Court. He submitted that the nature of the reliefs being sought all fall within the provisions of section 251(r ) of the 1999 Constitution; and that the reliefs sought are only cognizable in the Federal High Court relying on Hon. Justice Raliat Elelu- Habeeb v The Hon. Attorney General of the Federation & 2 Ors (2012) 2 SC(Pt.1) 145,161, Tukur v Government of Gongola State (1989) 4 NWLR (Pt 117) 517 at 567. He submitted that this is not a labour or employment matter as provided by section 254C(1) (a), (d), and (j) of the 1999 Constitution (as amended). He urged the Court to refuse to entertain the suit as the matter does not fall within its jurisdiction.

Submissions of Claimants

[11] The Claimants submitted five issues for determination;

1. Whether in view of the 1^st and 2^nd Defendants’ threat of imminent harm and the violation of the Claimants’ constitutional rights to freedom of movement and against forced and rights to freedom of movement and against forced and compulsory labour guaranteed under s. 41 and 34 of the 1999 Constitution, the Claimants must endure the continuous violations of their constitutional rights for three whole months before the instant action could be commenced against the Defendants as provided by Section 24 of the Nursing and Midwifery (Registration, Etc) (Amendment) Act, 2020.

2. Whether given the peculiar facts and circumstances of this case, the strict compliance with the provisions of section 24 of the Nursing and Midwifery (Registration Ect) (Amendment) Act, 2022 will not occasion injustice and deny the Claimants unhindered access to Court?

3. Whether given the facts of this case, the Claimants have sufficiently disclosed locus standi to institute this action?

4. Whether given the facts of this case, the Claimants have disclosed a reasonable cause of action against the 1^st and 2^nd Defendants to warrant the institution of this action against them?

5. Whether given the facts and circumstance of this case, the jurisdiction of this Court was properly ignited?

[12] Learned Counsel in arguing issue one and two agreed that failure to issue a pre-action notice under Section 24 of the Nursing and Midwifery Registration Act (Amendment) Act 2022 robs the Court of its jurisdiction. He submitted that the peculiar circumstances of this case created an impossible situation for strict compliance with the statutory provision and that reason compelled the Claimants to immediately seek injunctive reliefs by filing the instant suit. He submitted that it is constitutionally forbidden to deny citizens access to the Courts of the land when their rights are threatened, and he relied on Amadi v NNPC (2000) LPELR-445(SC) (pp.49-49 paras F-G), NSDC, Benue State Command & Anor v Samuel (2022) LPELR-56933 (CA), Obasi v Fadeyi (2020) LPELR 51758 (CA). He questioned whether the Claimants should continue to endure the continuous violations of their fundamental rights to freedom of movement and against forced and compulsory labour guaranteed under Section 41 and 34 of the 1999 Constitution for the period of three months before commencing this suit.

[11] Learned Counsel contended that the fact that the Claimants case has a fundamental rights flavor makes it an exception to the issuance of pre-action notice and that the Claimants took urgent action within 72 hours to forestall the infringement of their rights relying on A-G Anambra State v Eboh (1992) 1 NWLR (Pt 218) at 509.  He argued that the Defendants should not be allowed to seek cover under Section 24 as their actions are repugnant to the 1999 Constitution and international conventions; and the Claimants are all persons who have rights to protect to seek remedies crucial to their constitutional rights to freedom of movement, and against forced and compulsory labour. He submitted that the interest of justice should be paramount.

[12] Learned counsel on the issue of locus standi submitted that the Claimants have sufficiently demonstrated that they possess the requisite locus standi to institute this action and relied on Inakoju v Adeleke (2007) LPELR-1510 (SC). He submitted that from the Claimants supporting affidavit it is clear that they have rights to protect, and that they are not busy bodies or meddlesome interlopers. Counsel further argued that Order 13 rule 11(1) of the National Industrial Court Rules 2017 allows persons having the same interest in one suit to sue and be sued on behalf or for the benefit of all the persons so interested. He contended that the Claimants could maintain this action for themselves and other members of the nursing profession inflicted by the Defendants’ illegality and arbitrariness; and relied on Owodunni v Registered Trustees of CCC & ors (2000) LPELR-2852(SC) in urging the Court to hold that the Claimants have locus standi to institute this action. It was his submission that the further affidavit filed by the 1^st and 2^nd Defendants is incompetent under Order 17 Rule 11 and he cited Amasike v Registrar General CAC & Ors [2010] LPELR 456 (SC). He then urged the Court to dismiss the Objection.

Reply

[13] Learned Senior Counsel submitted that Order 17 Rule 11 is a discretionary issue. He argued that it is not a requirement that a reply on point of law must be filed; and that the use of the word “and” is to be read disjunctively.

3^rd and 4^th Defendants NPO

[14] The 3^rd and 4^th Defendants Notice of Preliminary Objection is dated March 18, 2024. It is brought pursuant to Order 18 rule 2 (2) of the Rules of Court, Sections 6 (6) (a) & (b) of the 1999 Constitution (as amended), and is praying the for:

1. An Order of this Honourable Court striking out the names of the 3^rd and 4^th Defendants/ Applicants from this suit for want of jurisdiction, abuse of court processes and as no reasonable cause of action were disclosed them;

2. And any further order(s) as this Honourable Court may deem fit to make in the circumstance.

[15] The grounds upon which the objection is made are as follows:

1. That this suit is not justiciable against the 3^rd and 4^th Defendants/ Applicants

2. That the 3^rd and 4^th Defendants/Applicants are not juristic or legal person capable of suing or being sued;

3. That no reasonable cause of action are disclosed against the 3^rd and 4^th Defendants/ Applicants.

4. That the fact the 3^rd and 4^th Defendants/Applicants are Minister and Ministry respectively does not entitle them to be a party to every suit involving all its agencies;

5.  That the present action is “forum shopping” and gross abuse of court processes.

[16] The Objection is supported by a written address. In opposition, the Claimants filed a reply on points of law. Counsel adopted his written addresses and made oral submissions.

Submissions

 [17] The 3^rd and 4^th Defendants submitted three issues for determination:

a. Whether assuming without conceding that the 3^rd and 4^th Defendants/ Applicants are juristic persons; whether because of the fact the 3^rd and 4^th Defendant / Applicants are Minister and Ministry respectively does not entitle them to be a party to every suit involving all their agencies?

b. Whether this honourable Court have the requisite jurisdiction and competence to entertain this suit against the 3^rd and 4^th Defendants/ Applicants who are not juristic or legal personality?

c. Whether the names of the 3^rd and 4^th Defendants/ Applicants are liable to be struck out from this suit since there are no reasonable cause of action is disclosed them?

[18] Learned counsel in arguing issue submitted that the 3^rd and 4^th Defendants are not juristic persons, and are not proper and desirable parties. He argued that there are no claims or reliefs made directly against the 3^rd and 4^th Defendants. He cited Attorney General Kano State v Attorney General of the Federation (2007)6 NWLR (pt. 1029) page 164 SC, Attorney –General Anambra State v Attorney General of FRN (2007) ALL FWLR (Pt 379) 1218 at 1249-1250 Par F-B (SC). Counsel further submitted that the law is that when statutory bodies are sued and the claims therein is clearly against them and not the Ministry or the Minister, the Ministry or Minister has no business being joined as a party in such suit. He therefore urged the Court to strike out the name of the 3^rd and 4^th Defendants/ Applicants as no relief is sought against his office or Ministry.

[19] Learned counsel on issue 2, submitted that this Court lacks the requisite jurisdiction and competence to entertain this suit against the 3^rd and 4^th Defendants/ Applicants who are not juristic persons. He argued that the condition precedent for the assumption of jurisdiction by the Court has not been met which includes but not limited to suing a person known to law or a natural person citing DENR Ltd v Trans Ints Bank Ltd (2008) 18 NWLR (Pt. 1119) 396 SC. He submitted that  there is no cause of action against the 3^rd and 4^th Defendants that has necessitated the joinder of the 3^rd and 4^th Defendants and he cited Ogbebor v INEC (2005)5NWLR 948, 376 at 404, paragraph G. He urged the Court to decline jurisdiction and strike out the name of the 3^rd and 4^th Defendants/ Applicants from the suit.

Claimants submissions

[20] Learned counsel submitted that the office of the 3^rd Defendant is a creation of statute relying on Section 147(1) of the 1999 Constitution. He further submitted that the 3^rd and 4^th Defendants have been sued in their statutory capacities with regards to the Constitution of the membership of the Nursing and Midwifery Council of Nigeria (NMCN) sued as the 2^nd Defendant in this suit.  He submitted that by the provision of Section 2(2) (a) of the Nursing and Midwifery (Registration, etc) Amendment Act 2022 it is clear that the alter ego of the 2^nd Defendant is statutorily appointed by the 3^rd Defendant and to which the affairs of the 2^nd Defendant is duly reported. He  submitted that the 3^rd and 4^th Defendants are proper parties to this suit and their names ought not o be struck out by virtue of their respective offices and positions citing Green v Green (1987) NWLR (Pt.61) 481.

Decision

[21] I have considered the originating processes and the Preliminary Objections. I will begin with the objection of the 1^st and 2^nd Defendants as it is fundamental to the competency of the entire suit. Jurisdiction is a fundamental and threshold issue that has been raised by the 1^st and 2^nd Defendant. It is settled law that no matter how well conducted the proceedings and judgment of a Court is, it become a nullity where it is shown that the Court lacks competence and jurisdiction to entertain the action. A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v Nkemdilim (1962) NSCC 374 at 379-380, Ogara v Dialoke (2019) 11 NWLR (Pt 1683) 191.  

[22] Section 24 of the Nursing and Midwifery (Registrations Etc) Amendment Act 2022 provides as follows:

24. A person who has a cause of action against the Council shall-

(a) give the Council three months’ notice, in writing, of intention to commence an action, disclosing the cause of action and served processes to the principal office of the Council; and

(b) commence the legal action within two years from the date the cause of action arose.

This is a statutory pre-action notice to be given to the 1^st and 2^nd Defendant before any suit is initiated against it. The use of the word “shall” imposes a mandatory duty on the Claimant to serve the Defendant with a pre-action notice, see International Tobacco Co Plc v NAFDAC [2007] 10 NWLR (Pt 1043) 613 at 631-632 para F-F. The duty of the Claimants to serve pre-action notice has already been conceded by learned counsel to the Claimants.

 [23] There is no evidence before the Court that the Claimants served the 1^st and 2^nd Defendants with a pre-action notice in compliance with section 24 of the Nursing and Midwifery (Registrations Etc) Amendment Act. The Claimants argument is that matters that have to do with fundamental rights where a breach is contemplated or has occurred are urgent and do not permit of the time frame of three months as pre-action notice.

[24] A pre-action notice is a form of notice issued by an aggrieved person which is expected to be formally served on the other party before the commencement of an action. The purpose and nature of a pre-action notice is to bring the grievance of the Claimants to the notice of the 1^st and 2^nd Defendants who would then be in a position to decide whether or not to settle and compromise the claim or allow the matter to go to Court, and has the benefit and advantage of either invoking the discretion or not. See International Tobacco Co Plc v NAFDAC supra at 630. The pre-action notice must meet all the conditions laid down in the statute stating the reasons why the aggrieved party is instituting a legal action against the opponent, intimate the opponent of what to expect or be confronted with should the action proceed to Court, see Nigerian Ports Ltd v SES [2016] 17 NWLR (pt 1541) 191. It is a statutory requirement, failure of which means that a condition precedent has not been complied with and such failure will deprive the Court of jurisdiction to entertain the case, see Shaibu v. NAICOM [2002] 12 NWLR (Pt. 780) 116.

[25] Learned counsel to the Claimants has argued that a pre action notice is a denial of the Claimants right of access to the Court. The Court of Appeal has held in International Tobacco Co Plc v NAFDAC supra, Nigerian Port Plc v Oseni (2000) 8NWLR (Pt 669) 410 at 418 para A-B that pre-action notice is a condition precedent to the institution of an action. 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.  A condition precedent has no adverse effect on the right of a citizen to seek redress in a court of law. It only delays the vesting of the right to go to Court until the happening of an event.

[26] Regarding the objection filed by the 3^rd and 4^th Defendants, the Claimant has not shown to the Court that the 3^rd and 4^th Defendants are juristic persons that can be sued and this is an issue that touches on the jurisdiction of the Court. The 5^th Defendant is a nominal party with no cause of action disclosed against him. The main parties in this suit are the 1^st and 2^nd Defendants, and the questions for determination and reliefs sought are all against 1^st and 2^nd Defendants. 

[27] The failure of the Claimants to comply with the statutory and mandatory condition precedent (of the service of pre-action notice) on the 1^st and 2^nd Defendants renders this suit as presently constituted premature, and incompetent, see International Tobacco Co Plc v NAFDAC supra, Nigerian Port Plc v Oseni supra, Shaibu v. NAICOM [2002] 12 NWLR (Pt. 780) 116.

[28] Consequently, this suit is struck out for being premature, incompetent and for want of jurisdiction. Each party is to bear its own costs.

Ruling is entered accordingly.

                                                ________________________________

                                                Hon Justice O. A. Obaseki-Osaghae