PRE-ACTION NOTICE – WHETHER SECTION 97 OF THE PORTS ACT IS APPLICABLE TO CASES OF CONTRACT  

 

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11/05/2020 1:45 pm  
"In N.P.A. V. Construzioni Generali Farsura Cogefar Spa (1974) 12 SC 69, this court had cause to construe the provisions of Section 97 of the Ports Act, which provide thus:-

 

‘No suit shall be commenced against the authority until one month at least after notice of intention to commence the same shall have been served upon the authority by the intending plaintiff or his agent.’

 

The provisions are no doubt in pari materia with the provisions of Section 12(2) of the NNPC Act. Now, in construing Section 97(2) of Ports Act, this court also set out the provisions of Sub-section (1) of the section, which again, is in pari materia with Section 12(1) of the NNPC Act. The court held, inter alia, at page 83, line 29 to page 84 line 16 as follows:-

 

‘We shall now deal with the other point which to our mind, does not seem to be well-settled, namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether S. 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract. The learned Chief Justice, in deciding this point, made reference to the case of Sal a ko v L.E.D.B. and Anon. 20 N.L.R. 169 where de Commarmond S.P.J, as he then was, construed the provision of Section 2 of the Public Officers Protection Ordinance which is almost identical with S.97 of the Ports Act, and thereafter stated the law as follows: -

 

‘I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc. We too are of the opinion that de Commarmond S.P.J, has quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. S.97 of the Ports Act is not intended by the legislature to apply to specific contracts.’"

 

The court held that the section applies to everything done or omitted to be done under the Act. In other words, it applies to those matters specifically referred to in subsection (1) of the Act. It is for this reason that the court held that it would be stretching the meaning of the provision too far if it is extended to specific contracts. The court at page 85 (supra) cited with approval, the decision of the Court of Appeal in Midland Railway Company V. The. Local Board For The District Of Withington (1882-3) 11 Q.B.D., 788, PER BRETT, M.R. at PAGE 794, wherein the applicability of the provisions of Section 204 of the Public Health Act, 1875, which are similar to Section 97(2) of the Ports Act and Section 12(2) of the NNPC Act, was considered. His Lordship held thus:-

 

‘It has been contended that this is an action in contract, and that whenever an action is brought upon a contract, the section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract, the section does not apply; according to the cases cited an enactment of this kind does not apply to specific contracts. Again when goods have been sold, and the price is to be paid upon a quantum meruit, the section will not apply to an action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute.’"

 

PER K. M. O. KEKERE-EKUN, J.S.C. IN WARRI REFINING & PETROCHEMICAL CO LTD VS GECMEP NIGERIA LIMITED  SUIT NO:SC. 769/2017


LEGALPEDIA ELECTRONIC CITATION:
(2020) Legalpedia (SC) 11195


 


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