Legalpedia Citation: (2013) Legalpedia (SC) 41136

In the Supreme Court of Nigeria

Fri Feb 22, 2013

Suit Number: SC. 248/2005

CORAM

WALTER SAMUEL NKANU ONNOCHEN, JSC JUSTICE, SUPREME COURT(Lead Judgment)

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JSC JUSTICE, SUPREME COURT.

SULEIMAN CALADIMA BODE JUSTICE, SUPREME COURT

PARTIES

GODWIN UCWUANYI APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This appeal is against the decision of the Court of Appeal dismissing the plaintiff/appelant’s appeal. The plaintiff/appellant sued the defendant for unlawful dismissal among other things, the defendant after entering an unconditional appeal challenged the jurisdiction of the trial court, stating that the plaintiff/appellant failed to serve the statutory mandatory  pre-action notice on the defendant/respondent before commencing the action. The trial court upheld the preliminary objection and struck out the suit.

HELD

APPEAL DISMISSED.

ISSUES

(1)    Whether it is the Companies and Allied Matters Decree 1990, the Memorandum and Articles of Association of NICON Insurance Plce, the appointment paper and the Handbook on the conditions of service of NICON Insurance Plc or the NICON Act 1969 and 1990 that regulates the contract relationship between the appellant and the respondent, now NICON Insurance Plc, Registered under the Companies and Allied Matters Decree 1990.(2)    Whether or not pre-action notice is applicable to the specific contract of service between the appellant and the respondent.(3)    Whether or not the respondent, after recieving service of the plaintiff/appellant’s Writ of Summons on 30/5/96, after filing an unconditional Memorandum of Appearance dated 5/6/96, after filing first Motion for Preliminary Objection dated 20/6/96, withdrawn same on 3/12/97, after taking three fresh steps before filing the second motion for preliminary objection dated 15/7/99, that was, after more than three years of the reciept of the Writ of Summons, had waived its right of Pre-action Notice.

RATIONES DECIDENDI

PRE-ACTION NOTICE – WAIVER OF PRE-ACTION NOTICE

The two questions to answer are :
(1) Is the waiver in this case clear and unambigous, and
(2) Has the appelland clearly failed to take advantage of his right in the circumstances.
These two requirements must co-exist to lead to the inevitable conclusion that the respondent has deliberately refused to take advantage of the waiver.

JURISDICTION – CONDITIONAL PRECEDENTS

A case has to be initiated by due process of law and upon fulfillment of any condtition precedent to the exercise of jurisdiction. Any defects in these respects render the entire proceedings incompetent

PRE-ACTION NOTICE – STATUS OF ENTERING UNCONDITIONAL APPEARANCE

I think that ordinarily depending on the facts of each case the implication of entering unconditional appearance to a writ of summons served on a defendant without fulfilling a condition precedent of firstly serving him with pre-action notice where it is so required by the law raises an irregularity which can be waived.

CASES CITED

N.P.A V Construzioni Etc Ariro v Elemo

STATUTES REFERRED TO

NONE

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