REV. DR. (MRS.) NKECHI ANAYO-ILOPUTAIFE & ORS V NASCO ESTATE CO. LTD. & ANOR
May 30, 2025MR. JOHN EROMOSELE DARLINGTON v. POLARIS BANK LTD & ORS
May 30, 2025Legalpedia Citation: (2008) Legalpedia (SC) 24589
In the Supreme Court of Nigeria
Fri Mar 7, 2008
Suit Number: SC. 377/2002
CORAM
DANIEL O. IRIKEFE, JUSTICE, SUPREME COURT
PARTIES
NIGERCARE DEVELOPMENT CO. LTD. APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant filed an action for breach of contract against the respondent without issuing a pre- action notice.
HELD
The court dismissed the appeal.
ISSUES
1. Whether the provisions of Section 51(1) and (2) of Adamawa State Edict (sic) No. 4 of 1996 is not inconsistent with the provisions of Section 236(1) and Section 33 of 1979 Constitution as amended and therefore unconstitutional and void.2. Whether the learned Justices of Court of Appeal were right to have held that defendant need not PLEAD defence of pre-action notice in their Statement of Defence and that parties cannot waive this special defence.3. Whether plaintiff is not entitled to judgment on evidence led.
RATIONES DECIDENDI
WHETHER THE ISSUE OF PRE-ACTION NOTICE MUST BE PLEADED
There will be no need (which will not even arise or be necessary), to start pleading such pre-action Notice as a defence. Being a question of jurisdiction, the issue can be raised by a defendant or even by the court suo motu and thereafter hear from the parties as was done in this case- Ogbuagu J.S.C
EFFECT OF FAILURE TO GIVE PRE-ACTION NOTICE WHEN REQUIRED
A statute such as Section 51(1) and (2) of the Edict/Law requiring a pre-action Notice to be given to the defendant, not only goes to the competence of the suit, but it also touches on the jurisdiction of the court to entertain such suit. Where there is non-compliance of the Statute that is shown to be mandatory, the suit and/or proceedings is/are a nullity however well conducted – Ogbuagu J.S.C
WHETHER REQUIREMENT OF PRE-ACTION NOTICE VIOLATES THE CONSTITUTIONAL RIGHT OF ACCESS TO COURT
The constitutional right of access to the court, does not however, preclude statutory regulations of the exercise of the right – Ogbuagu J.S.C
CASES CITED
1. Prince Atolagbe & anor. v. Alhaji A. Awuni & 8 ors. (1997) 9 NWLR (Pt.522) 536; (1997) 1SCNJ. 1 2. Captain Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76 (2000) 6 SCNJ. l; (2000) 6 S.C. (Pt.1) 66; (2000) FWLR (Pt. 9) 1527 and (2000) 5 WRN 47),3. Alhaji K. Abubakar & 10 ors. v. Jos Metropolitan Development Board & anr. (1997) 10 NWLR (Pt. 524) 242 at 250-251 4. Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 149; (1991) 12 SCNJ. l
STATUTES REFERRED TO
None.
