Ani Comfort Chinyere
D.A Guobadia and A. Adekunle (Eds).
The Uwais Court. The Supreme Court and The Challenge of Legal Development (NIALS, Lagos, 2006) Pp 341-359
Generally speaking, civil proceedings may be commenced in the High Court by writ of summons, originating summons, originating motion or petition. The suit is brought to the notice of the prospective defendant after its issue and service on him. The purpose of the service is therefore to give notice to the defendant, so that he may be aware of and be able to resist, if he may, that which is sought against him.
The Legislature is the law-making arm of government. Sometimes the legislature in exercise of its legislative powers and within the ambit of those powers, stipulates the fulfilment of an act such as payment of money, or giving a special notice to some designated person, as a pre-condition for the institution of action. The court has responsibility to give effect to such legislative provisions and cannot question or refuse to give effect to such unambiguous provisions of the law promulgated within powers allocated to the legislature. Pre-action notice is one of such legislative provision. It is a pre-condition that has to be complied with where the law so provides, before the commencement of the proceedings.
The Supreme Court being the apex court in the land has in the exercise of its appellate jurisdiction adjudicated on matters involving pre-action notices. An example of such a decision is the case of Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors. Though the Court has over the years endeavoured to clarify the law by creating binding precedents on the legal regime of pre-action notices, this case stands out as a locus classicus on the position of the Supreme Court of Nigeria on the issue of pre-action notice. It is for this reason that this chapter highlights the decision. In most of the cases considered, the Court held divergent opinions on some legal principles, from those of the learned justices of the Court of Appeal. These Supreme Court decisions remain the ultimate law of the land in so far as the same Supreme Court did not overrule them in any subsequent judgement.
When dealing with the issue of pre-action notice, certain legal concepts often come into play. They include:
1. Condition Precedent;
3. Jurisdiction of court;
It is the object of this chapter to examine these concepts that have mostly become the focal points for the courts in cases involving pre-action notices. These concepts have been interpreted by both the Court of Appeal and the Supreme Court leading to the creation of legal principles on these issues. The interpretation given to these concepts and the principles fashioned by the courts, particularly the Supreme Court is examined subsequently.
Nature and Constitutionality of a Pre-action Notice
A pre-action notice is a letter usually given by the intending plaintiff’s solicitors to the prospective defendant, giving him notice of intention to institute legal proceedings against him for the recovery of whatever money that was being owed to the prospective plaintiff or remedy whatever the cause of action was, usually within seven days, failing which legal proceedings would be instituted. For instance, section 110 (2) of the Ports Act states thus:
“No suit shall be commenced against the authority until one month at least after written notice of intention to commence the same shall have been served upon the authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
The major purpose of a pre-action notice is to promote and give out of court settlement a preference. It is issued in order to give the prospective defendant an opportunity and breathing time to meet the prospective plaintiff and to determine whether he should make reparation to him or negotiate any possible out of court settlement.
Pre-action notice has been upheld as just and consistent with our civil procedure wherever statutes prescribe that such should be given.
The courts have also made pronouncements declaring pre-action notices and statutes requiring the fulfilment of a statutory provision before an action is commenced constitutional.
In the case of Anambra State Government v. Nwankwo, the court had to decide on the constitutionality of a pre-action notice. Section 11 (2) of the State Proceedings Law, Cap. 131 Vol. 4 of the Laws of Anambra State, 1986, provides that no action shall be instituted against the State or a public officer until the expiration of a period of three months after notice in writing has been delivered to some designated persons. The respondents argued that the said provision infringed their constitutionally guaranteed right to free access to the court as guaranteed by section 6 (6) (b) of the 1999 Constitution. The court held that section 11 (2) of the State Proceedings Law of Anambra State is valid and not unconstitutional. Achike JCA, stated:
“It is clear to my mind that section 11 (2) is a condition precedent for the institution of any action against the State Government. …Sections 6 (6) (b) simply shows the plenitude of judicial powers exercisable by the courts but that cannot be taken to mean that the powers to exercise judicial powers cannot be limited to prescribed conditions precedent before such powers are exercised.”
Also in the case of Gambari v. Gambari, the constitutionality of section 15 (1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No. 3 of 1988 of Kwara State, which prescribes the payment of a non refundable deposit of N10, 000 to the Accountant-General by any plaintiff intending to challenge in court the approval of appointment of a chief, was one of the issues for determination. The Court held that it is not unconstitutional to direct that as a condition precedent to challenging the appointment of any chief in Kwara State, the plaintiff must deposit with the State Accountant-General a non-refundable sum of N10, 000.
A condition precedent is something that must be done or must happen in a particular case before one is entitled to institute an action. It is not the essence of the cause of action, but it has been made essential by the law.
Where a pre-condition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid. This is because the act to which it is subject has not been done. It is however a different consideration where the non-compliance relates to a condition not fundamental to the constitutive elements but is subsequent to the act sought to be done. This non-compliance is regarded as a mere irregularity.
In the case of Nwabueze v. Okoye, it was held that a condition precedent for the issue of the writ of summons against the defendants who were resident outside the area of territorial jurisdiction of the High Court of Anambra State and who did not carry on business within that area of jurisdiction was that leave of the State High Court had to be obtained before the writ was issued.
Effect of non-compliance with Condition Precedent to Proceedings of court
The Court in Gambari v. Gambari, held that where there is non-compliance with a stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition is incompetent and the court is equally incompetent to entertain the suit. In disallowing the appeal, the court also held that the trial court rightly struck out the substantive action as incompetent as a result of the appellant’s failure to deposit the non-refundable sum of N10, 000, which was a condition precedent for the competence of the action.
The Court of Appeal also held in the case of Anambra State Govt. v. Nwankwo, that where any existing law provides for a condition precedent to the exercise of a court’s jurisdiction that condition must be fulfilled. Failure to satisfy such a condition renders the action incompetent, as the court cannot ignore such a condition precedent.
In the case of Umukoro v. Nigerian Ports Authority, the appellants sued the respondents for compensation. The respondents challenged the competence of the action in their pleadings contending that it was statute barred and also that no pre-action notice was issued to the 1st respondent as required by section 97 (1) and (2) of the Ports Act. The trial court upheld the objection of the respondents and dismissed the claim. The appellants appealed to the Court of Appeal and the Court of Appeal dismissed the appeal. Upon further appeal to the Supreme Court, the Court unanimously dismissed the appeal noting that it was in fact not disputed that the appellants never gave any notice to the 1st respondent before instituting the suit, which was against the mandatory provisions of section 97 of the Ports Act.
The court also held that except the aforesaid provisions of the Ports Act are complied with, any action against the Nigerian Ports Authority is incompetent. It should be observed, that the 1st respondents in this case, did not waive their rights to raise the issue of non-compliance with the statutory provision by taking steps in the action before raising the issue of non-compliance. They promptly challenged the competence of the action based on the non-compliance in their pleadings at the trial court.
Where the defect does not affect the competence or jurisdiction of a court, it is a mere irregularity, which the court may ex debito justiciae set aside. Where the defect or non-compliance amounted to a mere irregularity and the appellant had taken steps in the proceedings, he would be taken to have waived the irregularity and it would be too late in the day for him to seek to set the writ and proceedings subsequent to its service aside. Any non-compliance or defect that goes to the competence or jurisdiction of a court is fatal. It renders the proceedings a nullity, however well conducted and decided. The defect is extrinsic to the adjudication.
Jurisdiction of Court
A court is said to be competent or to have jurisdiction when the necessary conditions giving rise to its constitution are available. Once the jurisdiction of the court is challenged or raised for the first time, it must be considered first before any other consideration. The Supreme Court had in the case of Madukolu v. Nkemdilim enumerated the conditions giving rise to proper jurisdiction of the court to include when:
(a) It is properly constituted with respect to number and qualification of its members;
(b) The subject-matter of the action is within the jurisdiction of the court;
(c) The condition precedent to the exercise of the court’s jurisdiction has been fulfilled;
(d) The action is initiated by due process of the law, or that any condition precedent to the exercise of the court’s jurisdiction has been fulfilled.
Once a defendant raises objection as to the non- compliance with a condition precedent to the exercise of the court’s jurisdiction, it is for the court seized of the proceedings to examine the objection to ascertain whether it can adjudicate. The court cannot side track such an objection.
The Supreme Court has unequivocally held that any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided.
When considering the issue of jurisdiction of a court to entertain a matter, the relevant processes the court looks at are the writ of summons, the statement of claim and the affidavit in support of the application by way of preliminary objection.
The Court of Appeal in Lawal v. Oke struck out the suit for lack of jurisdiction. It held that following the decision of the Supreme Court in Madukolu v. Nkemdilim, on condition precedent as a prerequisite for the court to assume jurisdiction, the failure and non compliance with a statutory provision requiring a condition precedent to be fulfilled, rendered the action incompetent.
Where the court finds that it lacks jurisdiction to entertain any matter, the proper order to make is that of striking out of the suit The Supreme Court has severally held that the issue of jurisdiction, which determines the competence to exercise jurisdiction can be raised at any stage of a trial. It can be raised for the first time on appeal, and even for the first time at any time, even at the Supreme Court. The court can also suo motu raise the issue of competence and jurisdiction of the court.
The main function of pleadings is the ascertainment with as much certainty as possible, the various matters actually in dispute between the parties and those in which there is agreement between them.
The Supreme Court held in the case of Katsina Local Authority v. Makudawa, that the respondent who wishes to rely upon the defence of non-compliance, must raise the defence in his pleadings.
The respondent is at liberty to raise the issue of non-compliance in a sworn affidavit. Parties are bound by their pleadings and any evidence, which is at variance with the pleadings, is discountenanced and goes to no issue. Likewise, it is not open to a party to depart from his pleadings and put up a different case from the one pleaded.
The Supreme Court had earlier in the case of Katsina Local Authority v. Makudawa, enunciated the general principle of pleadings that a respondent who wishes to rely upon the defence of non-compliance is to raise the defence in his pleadings. The Supreme Court adopted this decision in the case of Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors where it held that where pleadings are filed and it is intended to rely on a condition precedent, then that condition precedent must be pleaded. It further stated that if such condition precedent were not pleaded, the defendant would by the simple rules of pleading be taken to have waived whatever rights he possesses in the subject matter.
The Court of Appeal has followed the Supreme Court in this regard, and has held that where a party intends to dispute the issue of non-compliance with the provisions prescribing pre-action notice, that allegation must be raised in an affidavit since it is only then that it will become necessary for the other party to join issues on it by filling a counter affidavit and exhibiting any proof that he may have in that regard.
In the case of Ames v. Electrical Co. Ltd. v. Federal Airports Authority of Nigeria, the fact that there was non-compliance with the requirement of a pre-action notice was raised on the motion papers and the submission of counsel only, with no facts to back it up in the affidavit in support. In that case, of the appellants appealed against the decision of the Federal High Court dismissing their case for allegedly failing to serve a pre-action notice on the respondent before commencing the action. The Court of Appeal noted that there was an averment in the statement of claim that the required pre-action notice was given to the respondent in a letter, which was duly replied, by the respondent. The Court in unanimously allowing the appeal, held that where a party intends to dispute the issue of non-compliance with the provisions prescribing pre-action notice, that allegation must be raised in an affidavit since it is only then that it will become necessary for the other party to join issues on it by filling a counter affidavit and exhibiting any proof that he may have in that regard. The court maintained that it is for the defendant if he thinks that any condition precedent has not been performed or fulfilled to take the objection in his statement of defence by specifically pleading what that condition was and the fact that it had not been performed or fulfilled.
As a general rule, where a special statutory provision is made for the filing of or the prosecution of a relief, the procedure so laid down ought to be followed and complied with unless it is such that may be waived.
A party who has a benefit given him by statute may waive it if he thinks fit. The Supreme Court defined the term waiver as the intentional and voluntary surrender or relinquishment of a known privilege and or right. It implies a dispensation or abandonment by the party waiving, of a right or privilege, which at his option, he could have insisted upon.
As a general rule, the conditions imposed by statutes which authorise legal proceedings, are treated as being indispensable to giving the court jurisdiction. However, if no public interest is involved in the statutory condition and it is basically for the benefit of the parties to the action, such conditions will not be considered indispensable. Either party may waive the condition without affecting the jurisdiction of the court. Hence the maxim, quilibet potest renunciare juri pro se introducto, meaning that an individual may renounce a law made for his special benefit.
The guiding principle to determine whether the provisions of an enactment can be waived is to determine whether such provisions are directory or mandatory. While a breach of mandatory enactment renders what has been done null and void, for a merely directory statute, it is immaterial so far as it relates to the validity of the thing to be done, whether the provisions of the statute are accurately followed or not.
In the case of Ezomo v. Oyakhire the Supreme Court stated that the concept of waiver is that a person who is under no legal disability and having full knowledge of his rights or interests, conferred on him by law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted the exercise of those rights or that he has been denied the enjoyment of those rights.
The concept of waiver presupposes that the person who is to enjoy the benefit or who has the choice of two benefits is fully aware of his rights to the benefit or benefits, but he either neglects to exercise the benefit or where he has a choice of two, he decides to take one but not both. Where for instance a defendant is served with writ of summons in breach of section 97 of the Sheriffs and Civil Process Act, which provides for a special endorsement of a notice on every writ of summons for service outside the jurisdiction in which it was issued, this special endorsement is a condition precedent for service of writ of summons outside jurisdiction. The Supreme Court held in Odu’a Investment Co. Ltd. v. Talabi that such a defendant has a choice either to object to the service by applying to have it set aside and the court ex debito justiciae will accede to the application, or ignore the defect and proceed to take steps in the matter. Where the latter is the case, his application to set aside must be refused. In the instant case, the appellant entered unconditional appearance and filed pleadings. Therefore, the court held that he is deemed to have waived his right to object and could not later in the proceedings seek to set aside the writ because of the original defect.
The Court of Appeal in the case of Nigerian Ports Plc v. Ntiero, held that failure to serve pre-action notice where it is prescribed by statute is not a mere irregularity, which could be waived by the defendant taking further steps in the proceedings. It further observed that it is a statutory requirement failure of which means that a condition precedent has not been complied with, and that such a failure will deprive the trial court of any competence or jurisdiction to try the case. The Court cited the Supreme Court decision in the case of Umukoro v. N.P.A to support its decision.
This decision of the Court of Appeal in Ntiero’s case, from the stand point of the Supreme Court, can only be valid, so long as the defendant did not take steps in the action before raising the issue of non- compliance, else, the maxim quilibet potest renunciare juri pro se introducto, will apply, and he would be deemed to have waived his rights to complain at that point.
The Supreme Court has made pronouncements over the years, concerning non –compliance with a condition precedent and the issue of waiver. These decisions would also have persuasive force when the issue at hand borders on non-compliance with a statutory provision that requires the issuance of a pre-action notice. The Supreme Court has consistently referred to its decisions in the cases of Skenconsult (Nig.) Ltd. v. Ukey, Ezomo v. Oyakkhire, NEPA v. Onah, Adegoke Motors v. Adesanya, Nwabueze v. Okoyeamong others. The Court of Appeal in Adegoke Motors Ltd. v. Adesanya, while considering the decisions of the Supreme Court in Skenconsult and Ezomo, held by a majority of two to one, that the two decisions were conflicting. The Supreme Court has cleared and laid to rest any seeming conflict in the decisions. In Skenconsult, the second defendant was not served, while service on the 1st defendant was irregular, and he did not waive the irregularity. The proceedings were rendered null and void for non-compliance with the provisions of sections 97 and 99 of the Sheriffs and Civil Processes Act. In Ezomo, it was held that non–compliance with section 99 of the Sheriffs and Civil Processes Act, if not objected to by preliminary objection is an irregularity, which is capable of being waived and it is waived by the other party taking further steps after he has become aware of the irregularity.
Furthermore, in Nwabueze, leave was not first obtained before the writ was issued and the defendants protested the irregularity at the earliest opportunity, not waiving the irregularity. The Supreme Court set aside the writ for being null and void. Also in NEPA, there was no waiver and the court also set aside the defective service. In Adegoke Motors, the court held that the entering of appearance to the writ by the appellant constituted a waiver to the irregularities attached to the writ by the non-compliance with the provisions of sections 97 and 99 of the Sheriffs and Civil Processes Act.
As early as 1974, the Supreme Court had to determine whether an appellant who initiated an action would require to be issued a pre-action notice where the respondent files a counterclaim or whether he is deemed to have waived his right to a pre-action notice. This was the crux of the matter in the case of Nigerian Ports Authority v. Construzioni Generali In that case, the Court held that Section 97 of the Ports Act, which required notice of action did not apply to the filing of a counter claim where the suit itself is commenced by the very authority for whose protection the section was enacted. In such circumstances, the statutory body concerned is deemed to a certain extent, to have waived the privilege or protection conferred upon it by the statute. The Court further held that the waiver extends only to any counterclaim which is directly related to the principal claim; but not to a counterclaim, which is outside of and independent of the subject matter of the claim.
The Mobil Case
At this juncture, it is apt to consider the decision of the Supreme Court in the case of Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors, which put to rest most of the issues canvassed above. In that case, Mobil Producing Nigeria Unlimited commenced the proceedings upon which this appeal arose in the Federal High Court, by an originating summons, seeking various reliefs against (1) the Lagos State Environmental Protection Agency; (2) the Federal Environmental Protection Agency (FEPA); (3) the Ministry of Environment; (4) Various respondents whose names were set out in a schedule to the originating summons. The reliefs sought in the originating summons were as follows:
“1 A declaration that the 2nd and/or 3rd defendants are by virtue of Schedule II, part 1, Item 29 of the Constitution of the Federal Republic of Nigeria, 1999 and Ss. 20, 21, 23 and 24 of the FEPA Act of 1988, the authorities with exclusive power to determine the liability of the plaintiff with regard to any and all alleged damage arising out of the spill into interstate and/or territorial waters of Nigeria, including the costs of any government body, agency or third parties in the form of reparation, restoration, restitution, compensation and/or damages.”
1. A declaration that the findings and conclusions contained in the reports approved and /or endorsed by the 2nd and 3rd defendants are conclusive as to the nature and/or of the environment and /or other impact of the spill.
2. A declaration that the findings and conclusions of the reports to the effect that the spill had no negative/adverse environmental and/or other impact on the ecosystem and/or human resources of Lagos State or any of the States represented by the relevant State governmental bodies or agencies, listed in the 1st schedule; and/or any of the 4th defendants listed in the 2nd schedule to this summons.
3. An order that the 1st defendant/respondent and the 4th defendants, their agents, attorneys, servants, privies and/or any persons whosoever acting for, or claiming through them be refrained from:
(a) taking or procuring any other person or persons to take steps in any action, proceeding or further steps in any action commenced by any of the defendants in various divisions of the Federal and State High Courts of Nigeria; and/or
(b) commencing or continuing, or procuring any other person to commence or continue any action or further or other proceedings before any court or tribunal in Nigeria or elsewhere against the plaintiff or reparation, restoration, restitution, compensation and/or damages arising out of the plaintiff’s January 12, 1998 Idoho-QIT 24 Pipeline Oil Spill other than as may be determined by the 2nd defendant, or at all.”
The appellants obtained an order of interim injunction against the respondents. Thereafter, a number of motions were severally filed by some of the 4th set of respondents to discharge the order. In the course of arguing one of the motions, counsel argued that a material plea of the appellant ought to be that one-month pre-action notice was given. In response, counsel for the appellant replied that no question of absence of pre-action notice was raised in the affidavit in support of the application to discharge the interim order of injunction. He further argued that it was not within the right of the respondents to say that notice was not given to the Federal Environmental Protection Agency when there was no evidence whatsoever before the court to that effect. At the conclusion of counsel’s argument, the trial court upheld the objection and struck out the entire suit. On appeal to the Court of Appeal, the appeal was dismissed. The appellant further appealed to the Supreme Court.
The Supreme Court had to consider among other things, the provision of section 29 (2) of the Federal Environmental Protection Agency Act, which states as follows:
“No suit shall be commenced against the agency before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Agency by the intending plaintiff or his agent; and the notice shall clearly and explicitly state:
(a) the cause of action;
(b) the particulars of the claim;
(c) the name and place of abode of the intending plaintiff; and
(d) the relief which he claims.”
The court after considering the issues raised in the appeal, unanimously allowed the appeal. It held that the provisions of the FEPA Act was enacted for the benefit of the 2nd respondent, the Federal Environmental Protection Agency, who ought to have pleaded that the appellant had not complied with the notice required of it by the provisions of section 29 of the Act. That in so far as the 2nd respondent did not raise the issue, it must be taken that the appellant had complied with the provisions of section 29 of the Act, or it had waived its right under the subsection.
On the competence of the 4th respondents to raise the issue of non compliance with section 29 of the FEPA Act, the court held that none of the 4th respondents were within the contemplation of the provisions of section 29 of the FEPA Act with regard to the service of notice to initiate this action, and that it is not for any of these parties to raise the question of non-compliance. On this, Ayoola J. S. C. said:
“It will hardly be a satisfactory state of affairs where a person on whom pre-action notice should be served to have waived the protection of the Act and submit to the jurisdiction of the court, another party on whom service is not required is allowed to raise the issue of non-compliance …”
Ultimately, the court adopted its earlier decision in Katsina Local Government Authority v. Makudawa where it held as follows:
1. That provisions prescribing pre-action notice are mandatory;
2. non-compliance with such mandatory provisions can be waived;
3. non-compliance with such provisions is an irregularity in the exercise of jurisdiction, which should not be confused with a total lack of jurisdiction;
4. non-compliance with a condition precedent to the commencement of action must be pleaded; and
5. failure to plead it amounts to a waiver.
Going through the cases, it is observed that the Court of Appeal has in some instances, taken a rather stern position when the issue is raised on non-compliance with a statutory provision requiring pre-action notice to be given before an action is instituted. Its posture in most of the cases that have come before it, has been to decline competence and jurisdiction no matter when the issue was raised for the first time. It has based its decision on the reason that failure to serve a pre-action notice where one is prescribed by statute is not a mere irregularity, which could be waived by the defendant taking further steps in the proceedings and that failure to give such notice means that a condition precedent has not been complied with and such a failure will therefore deprive the trial court of any competence of jurisdiction.
The Supreme Court in its wisdom upholds the basic principle that court’s jurisdiction is ousted where a pre-condition is not fulfilled. A court can only be competent to entertain a suit if among other things, all the conditions to its having jurisdiction are fulfilled. Where a defendant challenges the jurisdiction and competence of the court based on the fact that the plaintiff did not serve the required pre-action notice, the Supreme Court would decline to strike out the case where it finds that the defendant had taken further steps in the action before raising the issue of non-compliance.
Though the Supreme Court is of the strong view that the issue of jurisdiction can be raised at any time, even at the Supreme Court, where however the question arises as to what happens if the issue of competence or jurisdiction of a court to hear a matter based on non- compliance with the provision of a pre-action notice is raised for the first time in the Court of Appeal or the Supreme Court, the position of the Supreme Court as seen in the cases, is that a defendant cannot raise the issue of non- compliance with a condition precedent after he has proceeded to take steps in the matter. This has been the consistent position of the court despite the fact that such non-compliance borders on competence and jurisdiction, and equally not considering its position that the absence of a condition precedent strips the court of its jurisdiction. .
The Supreme Court in Odu’a Investment Co. Ltd. v. Talabi had to distinguish between the situation where the non-compliance affects the competence and jurisdiction of the court, and where it is a mere irregularity. The court said that where the defect does not affect the competence or jurisdiction of the court, it is regarded as a mere irregularity which the court may ex debito justiciae set aside. If however the defects or non-compliance amounted to mere irregularity, he would be taken to have waived the irregularity and it would be too late in the day for him to seek to set the writ and the proceedings aside.
The decision of the Supreme Court in the Mobil case discussed above, for all intents and purposes, sums up the position of the Court concerning pre-action notice and all the principles incidental to it.
. See Okpalu v. Okpu (2003) 5 NWLR, p. 184. See also Nwadialo, F., Civil Procedure in Nigeria, (Lagos: MIJ Profesional Publishers Ltd. 1990), p. 172
2. Nwadialo, ibid, p. 206. See also United Nigeria Press Ltd. and Another v. Adebanjo (1969) 1 All N.L.R. 431 at 432.
3 Gambari v. Gambari, (1990) 5 NWLR, (pt. 152), p. 572, at pp. 589-590.
4 Section 235 of the 1999 Constitution, (Constitution of the Federal Republic of Nigeria Promulgation Act, Cap.C 23 Laws o f the Federation of Nigeria, 2004) provides that without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.
5 Section 233, ibid.
6 (2002) 18 N W L R (Pt. 798), p. 1. See also Umukoro v. N.P.A (1997) 4NWLR, (Pt. 502), p.656
7 The power of the Supreme Court to overrule itself when it appears that any of its decisions was given in error is predicted on the fact that it is far better to admit an error than to persevere in error. See Oputa JSC, in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR, (Pt. 109), p. 250 at pp. 274-275.
8 See Nigerian Ports Plc v. Ntiero (1998) 6 NWLR (Pt. 555) pp.650-651
9 Cap. 361 Laws of the Federation of Nigeria, 1990.
10 Nigerian Ports Plc v. Ntiero, ibid ; Lawal v. Oke (2001) 7 NWLR (Pt. 711) p. 88 and NNPC v. Chief Gani Fawehinmi (1998) 7 NWLR (Pt. 559).
11. NNPC v. Chief Gani Fawehinmi, ibid. The Court of Appeal adopted and followed Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) p.171.
12. (1995) 9 NWLR (Pt. 418), p. 245.
13. This section, which is replicated in section 6 (6) (b) of the 1999 Constitution, provides thus:“The judicial power vested in accordance with the foregoing provisions of this section:
(b) shall extend to all maters between persons, or between government or authority and any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
14. See also the dictum of Akintan JCA, supra, note 12, at p. 258.
15. Supra, note 3, at p. 587.
16. See Adigun v. Osaka (2003) 5 N.W. L. R (Pt. ) p.95.
17. Nwabueze v. Okoye (1988) 4NWLR, (Pt. 91), p. 664.
19. Supra note 3.
20. Supra note 12.
21. Supra, note 6.
22. The Court cited its earlier decisions in NBC v. Bankole (1972) 4 SC 94, Fadaare v. A-G Oyo State (1983) 4SC1,and Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) p. 212.
23. Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523), p. 1.
24. See Ogundare JSC in Odu’a Investment Co.Ltd. v. Talabi ibid, at p. 21.
25. Adigun v. Osaka, supra note 16; Akande v. Alagbe (2000) 15 NWLR (Pt. 690),p. 353; Eze v. A-G Rivers State (1999) 9 NWLR (Pt. 619), p. 430.
26. (1962) 2 SCNLR 341
27. See also Asogwa v. Chukwu (2003) 4 NWLR (Pt. 811), p. 540
28. Adigun v. Osaka supra, note 16 at p. 132. See also, Lawal v.Oke, supra, note 10 at p. 115.
29. See Adigun v. Osaka, supra note 16 at p. 131. See also Madukolu v. Nkemdilim, supra, note 26 and Lawal v. Oke, ibid.
30. Ames Electrical Co. Ltd. v. Federal Airports Authority of Nigeria, (2002) 1 NWLR, (pt. 748), p. 354 p. 369 .
31. See the dictum of Onalaja J.C.A., at p. 117, Supra, note 10.
32. Ames Electrical Co. Ltd. v. Federal Airports Authority of Nigeria, supra, note 30, at ,p. 354.
33. Adesola v. Abidoye (1999) 14 NWLR (Pt. 637),p. 28; Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296; Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259.
34. See Bronik Motors & Anor. v. Wema Bank Nig. Ltd. , Ibid.
35. See Oduka & Ors. v. Kasumu & Anor. (1968) NMLR, p. 28 at p. 31 and Aderemi v. Adedire (1966), NM LR, p.398.
36. (1971) 1 NMLR 100
37. Mobil Prod. Unltd. v. LASEPA & Ors. supra, note 6.
38. Umukoru v. N.P.A supra, note 6.
39. Supra note 36.
40. Supra, note 6
41 Ames Electrical Co. Ltd. v. Federal Airports Authority of Nigeria, supra note 30, at p. 369.
42. Ibid, p. 354.
43. Section 26 (2) of the Federal Airports Authority of Nigeria Decree No. 9 of 1996, requires pre-action notice t be served on the respondent by a prospective plaintiff.
44. Asogwa v. Chukwu, supra note 27, at pp. 591-592.
45. Adigun v. Osaka,supra, note 16.
46. Odu’a Investment Co. Ltd. v. Talabi, supra, note 23, at p. 51.
47. Mobil Prod. Unltd. v. LASEPA & Ors. supra, note 6.
48. (1985) 1 NWLR (Pt. 2), p. 195.
49. See Ariori v. Elemo (1983) 1 SC 13.
50. Ibid, at p. 292. See also, Ariori v. Elemo ibid.
51. Supra, note 23, at p. 51.
52. Supra note 6.
53. Supra note 6.
54. Odu’a Investment Co. Ltd. v. Talabi, supra note 23 and Mobil Prod. Unltd. v. LASEPA & Ors, supra note 6.
55. (1981) 1 SC 6.
56. Supra, note 48.
57. (1997) 1 NWLR (Pt. 484) 680.
58. Supra, note 7
59. Supra note 17.
60. Supra note 7.
61. Supra note 55.
62. See Adegoke Motors Ltd., supra note 7,at p. 292.
63. Supra note 17
64. Supra note 57.
65. Supra note 7.
66. (1974) 1 NLR (pt 11) 463.
67. Supra note 6.
68. Cap 131, Laws of the Federation of Nigeria, 1990.
69. See the dictum of Ejiwunmi J. S. C, at p. 47.
70. At p. 37.
71. Supra note 36.
72. Lawal v.Oke, supra note 10, Mobil Prod. Unltd. V. LASEPA & Ors, supra note 6.
73. See Nigerian Ports Plc v. Ntiero supra, note 8, at p. 651.
74. See Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria, (1986) 3 NWLR (Pt. 30) p. 617, at p. 627.
75. Bronik Motors & Anor. v. Wema Bank Nig. Ltd; General Electric Co. v. Akande (1999) 1 NWLR (Pt. 588) 532.
76. Odu’a Investment Co. Ltd. v. Talabi, supra note 23 and Mobil Prod. Unltd. v. LASEPA & Ors, supra, note 6.
77. Madukolu v. Nkemdilim, supra note 26.
78. Supra note 23.
Section 17(2)(e) of the Constitution guarantees direct and easy accessibility to courts of law to the citizens. Pre-action notice, which is a road block,negates this right of direct and easy accessibility. The courts should accept that they are rewriting the law to protect the establishment and thereby encouraging impunity .
I don’t agree that a pre-condition notice before an action is instituted serves as a road block or negates ones right to direct and easy accessibility to the law courts. I see it as a provision that will enhance not only ‘contractual’ relationships but also discourage the dissipation of time and energy of both the parties and the court. Settlement could be reached by the parties without necessarily going to court if they would use the time to sought out their differencies. The defendant who may not be aware of the grievance of the plaintiff may on the receipt of the pre-action notice call for a settlement. Where this is done business relationships are preserved and the court would have been saved the time it needs to attend to other cases.
Pre-action notices do not oust the jurisdiction of courts but only keeps it in abeyance until the condition is fulfilled. Parties should be discouraged from rushing to court without doing the needful.
To my mind,pre- condition notice is a legal requirement that should be complied with.There is no doubt that a lot of things must have been taken into consideration before the formulation of this law.I think it is a good law.It behooves on the councils to ensure that this pre-condition notice is firstly complied with before proceeding with the intended court action.
Let the decision of the supreme court stand in the case of mobile as regards to pre action notice and condition precedent…when one did not raise it at first for non compliance, is deemed to have waived it and cannot raise it again.
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