The procedural aspect
of the law is generally provided in the various Rules of Court which are
applied from the Magistrates’ Courts to the Supreme Court. Rules of Court are
meant to be obeyed. Apart from Rules of Court, there are other statutes which
provide for procedure. Apart from Rules of Court or statutes which are
specifically enacted to regulate procedure, other statutes which establish
corporations for example, also stipulate procedural requirements. A good number
of pre-action notices can be found in such statutes. The law is that where a
statute has provided for how something should be done, such a provision must be
complied with. It is indeed a concern that the applicability of pre-action
notice is not in consonance with the spirit of the rule of law. It is important
to note that a deep-rooted analysis of relevant procedural law does not in fact
guarantee pre-action notice any justification. No useful purpose is achieved by
continuing to uphold the constitutionality of pre-action notices.
which are used to justify the notices can be dispensed with. A letter from a
prospective plaintiff or his agent should be enough to commence a process of
deciding whether to make reparations to the plaintiff or not. Anachronistic
rules such as pre-action notices serve no end of justice and it is often a
procedural requirement which is employed by defendants to delay or deny an
inquiry into the merits of the case. They also cause untold hardship. The aim
of this work is to distill the inadequacies and excesses of pre-action notice
as currently applicable in Nigeria.
This work will also look at the position of
other countries as it relates to the doctrine of pre-action notice and finally
proffer solutions. This work is divided into five chapters. Chapter One deals
with the general introduction while Chapter Two deals with the doctrine of
pre-action notice as it applies in Nigeria. Chapter Three deals with the
doctrine of pre-action notice as an obstacle to justice while Chapter Four
deals with the application of the doctrine of pre-action notice in foreign jurisdictions.
Finally, Chapter Five deals with the conclusion and recommendations.
1.1.1 Access to
Access to Court
means “an opportunity or ability to enter, approach, pass to and from, or
communicate with the courts. Access to the court means
approach or means of approach to the court without constraint. That the combined purport
of Section 6 (6) (b); providing for
judicial powers of the court and Section 36,
providing for the right to; fair hearing in the 1999 Constitution of the Federal Republic of Nigeria (as
amended) (hereinafter referred to as
the Constitution),, is to facilitate the right of access to court
without legal obstacles that may neutralize the exercise or that right. It is beyond question that
the right to have access to the courts is crucial to the dispensation of
justice. For if a person cannot
have access to the courts, how will such a person be heard? In A.G. of Kaduna State v. Hassan, the Supreme Court held (per Oputa JSC) that there is perhaps no
question more fundamental in the whole process of adjudication than that of
access to justice- access to courts. Indeed, a person who cannot even reach the
courts cannot talk of justice from those courts.
Access to the
courts and access to justice are apparently used quite interchangeably, partly
because it is perhaps presumed that justice ought to be obtained from the
For now, it is
certain that under the Nigerian Constitutional arrangements, justice is not a
privilege but a right. In Nigeria, this is beyond jurisprudential disputation. Access to courts and
justice is indeed an inalienable right enshrined in the Nigerian Constitution
and is specifically entrenched in the fourth chapter of the Constitution which
provides for fundamental rights.
precedent is an action or event other than a lapse of time that must exist or
occur before a duty to perform something promised arises. It is also defined as a
fact or state of affairs that must exist before a particular contractual duty
must be performed. It is also regarded as
the condition which delays the vesting of a right until the happening of an
event which is an additional formality super imposed on by the law.
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 (would-be defendant) before the commencement of a valid action. In
other words, a statutory requirement that when an aggrieved person intends to
sue a public agency for some grievances, the aggrieved person is required to
give notice of his intention to sue the concerned public agency.
was described in the form of a written notice required by a statute to be
served on the appropriate body, of an intention to sue them by the intending
It was described thus:
notice connotes some form of legal notification or information required by law
or imported by operation of law, contained in an enactment, agreement or
contract which requires compliance by the person who is under legal duty to put
on notice the person to be put on notice before the commencement of legal
action against such a person mostly the intending defendant.
protocols (protocols) was defined as steps required to be taken by litigants
under the Civil Procedure Rules 1998 prior to the commencement of proceedings.
Background of Pre-action Notice in Nigeria
background of the principle of pre-action notice is traceable to the doctrine
of sovereign immunity which is to all intents and purposes before its
metamorphosis, is that the crown cannot do any wrong and therefore cannot be
sued in his own court.
Because of the
colonial link with Britain, Nigeria inadvertently had some of the British laws
incorporated into her own laws. However, in the case of Stitch v. Attorney
General of the Federation,
the Supreme Court of Nigeria
frowned against this doctrine that posited that the crown cannot do any wrong…
it was held in the above case that the powers of ministers who would have
otherwise hidden under the cloak that “the King can do no wrong” are subject to
Also, in the case of Attorney General of Bendel State v. Attorney
General of the Federation,
the court held as it relates to the capacity of the government to sue and be
Constitution has opened the gate to the court by its provisions and there can
be no justifiable reasons for closing the gates against those who do not want
to be governed by a law enacted not in accordance with the provisions of the
agencies and other public authorities do not enjoy the same immunity as the
government in its corporate capacity. Hence, public corporations are subjected
to the ordinary laws unless they enjoy some statutory exemption. Thus, the
doctrine of sovereign immunity does not cover independent statutory bodies. The combined effect of
this doctrine has been abolished by virtue of section 6(6) (b) of the 1999 Constitution of the Federal
Republic of Nigeria (as amended) (hereinafter referred to as the Constitution).
Hence it is only the Constitution that now enjoys sovereign immunity
from violations of the three tiers of government.
government or State normally relied on is the provision of Public Officers
which was equally shrouded with a lot of controversies.
controversy arose primarily from the interpretation of section 2 (a) of the Act as it relates to the import of the meaning
“any person” whether it is confined only to the natural person or extended to
the statutory corporations and their employees.
This was finally
laid to rest by the Supreme Court in Alhaji Ibrahim v. Judicial Service
Commission, Kaduna State,
when the Supreme Court posited that:
…there is no
justification for restricting the meaning of those words to a natural person
only, for that would be tantamount to qualifying or adding to the words of the
statute and usurpation of the legislative functions.
by virtue of section 318 also removed
the dichotomy that was in existence which defined Public Officers to include
all the branches of the public services including local government, statutory
corporations, educational institutions, the police and judiciary and even
registered company controlled by the various governments and their agencies.
The requirement of
pre-notice by some statutes has been subjected to a stringent criticism by some
learned commentators. It has been argued that pre-action notice is merely a
regulation of the right of access to the court and therefore does not amount to
the infringement of section 6(6) (b)
of the Constitution which provides for access to the courts and fair hearing. In fact, in NNPC v. Tijani, the Court of Appeal held
(per Fabiyi JCA) that “Regulations of the right of access to the court abound
in rules of procedure. They are in order in my humble view.”
behind the jurisprudence of pre-action notice is said to enable the defendant
knows in advance the anticipated action and a possible amicable settlement of
the matter between the parties without recourse to the adjudication by the
given for the rationality of pre-action notice is for the defendant not to be
taken by surprise but to be given a breathing space to decide whether or not to
settle or make reparation to the aggrieved party.
is submitted that with the current Lagos State High Court Rules being gradually
adopted by various States, one more pillar supporting pre-action notice has
Lagos State, parties must ‘front-load’ documents. This means a bundle of
processes would be served on the other party. Most of
these documents would hitherto have been brought during trial. All civil
proceedings commenced by writ of summons would usually be accompanied by a
statement of claim, list of witnesses to be called at the trial, written
statements on oath of the witnesses and copies of every document to be relied
on at the trial.
In fact, in Abuja, a certificate of pre-action counseling signed by counsel and
the litigant shall be filed along with the writ where proceedings are initiated
by counsel, showing that the parties have been appropriately advised as to the
relative strength or weakness of their cases, and the Counsel shall be
personally liable to pay the costs of the proceedings where it turns out to be
the front-loading system designed to discourage frivolous litigation and
certainly explore extra-litigious means of dispute resolution as well as
ensuring speedy litigation when it cannot be avoided, should obviate pre-action
notice. Indeed, the front-loading system is arguably more inclusive because it
does not, for example, preclude a plaintiff from taking out a writ. Thus,
access to the courts is absolutely unimpeded and, in a sense, processes like
pre-trial conferences actually form part of the proceedings since the dispute
may actually be resolved at the pre-trial conference stage with the stamp of
from the front-loading system, under the various Rules of Court in Nigeria, the
defendant usually has a reasonable time to file a statement of defence. This is
in spite of the fact that applications for extension of time to file a
statement of defence are usually granted by the courts. Furthermore, if the
defendant wants to negotiate a compromise as observed in Mobil Producing
(Nig.) Unltd v LASEPA
there is still no conflict. In fact, in practice, it is sometimes more
pragmatic to negotiate an out-of-court settlement whilst the matter is still
before the court. This is
because the parties could easily agree on terms of settlement and file it in
court as consent judgment. This would greatly reduce the possibility of parties
altering their positions often under the pretext of seeking amicable
line of argument is not advanced in spite of the practice of alternative
dispute resolution but rather as a result of it. Defendants are hardly taken by
surprise as far as litigation is concerned. This is even observed in the Amadi
The defendant was approached several times on the plaintiff’s position of
unlawful dismissal. Indeed, the court observed that ‘the plaintiff was no
stranger to the defendant having been its employee and having been shown to
have exchanged correspondence with the defendant after his suspension from duty
The defendant, rather than explore amicable settlement, decided to rely on its
behemoth status and engage in grandstanding. Yet this is the attitude that
pre-action notice provisions ineluctably encourage. This, it is submitted, is
unacceptable under the law.
Constitutionality of Pre-action Notice
is justifiable to regard pre-action notice provisions as a statutory privilege
which is a special advantage, immunity, permission, right or benefit granted to
or enjoyed by an individual or class or caste. As a
privilege, it can be waived by the party in whose favour it is provided for, because it is not a right in strict
sensu and could like any other privileges be waived especially when this
privilege enjoyed by the public bodies is not available to the other party to
discriminatory nature of the pre-action notice provisions have led to much
agitations for its total removal from all our law as this requirement
institutionalizes a preferential treatment in favour of the defendant.
is also the question of independence and impartiality on the part of judiciary
as amply provided for under section 36(1) of the Constitution, as such corporations like government
agencies are practically subsumed under the executive arm of government. Thus
creates an unwitting camaraderie between the judiciary and executive arm of
government at the expense of the plaintiff.
Supreme Court of Nigeria equally appears to support this view on pre-action
notice when it held in the case of Mobil Production (Nig.) Unltd v. Lagos
State Environmental Protection Agency
that the right to be served with a pre-action notice does not fall within the
category of rights which cannot be
waived through the application of the maxim “quilibet protest renunciare
juri prose introducto’’ based
on an undisputed fact that there is no provision in the Constitution for
special privileges to any class or category of persons.
those corporations or agencies uses the benefit of pre-action notice only as a
shield and never as a sword as can be deduced from the decision of the Court in
Nigeria Port Authority v. Construzioni General Fasura Cogefar, where the plaintiff/appellant sued the
defendant/respondent for their money had and receive to which the
defendant/respondent set up a counter claim towards the same transaction. When
pleadings have been filed and exchanged, the substantive suit was set down and
in fact came up for hearing, plaintiff sought the leave of the court to amend
his pleading by adding “The plaintiff in the alternative pleads the statutory
provisions of section 97 of the Act”
(which makes provision for the issuance of pre-action notice). The application
was rejected by the court on the ground that it was belated. At the end of the
trial, judgment was given in favour of the defendant on their counter-claim and
the plaintiff’s suit was dismissed accordingly in its entirety. It was held
that section 97 of the Act does not
apply to filing of counter-claims where the suit itself was brought by the very
authority for whose protection the section was enacted.
appeal to Supreme Court, it was held that if a statutory body sues as a
plaintiff, then any counter-claim which is directly connected with the
principal claim will be available to the defendant without the requirement of
the written notice of intention to sue.
 B.A. Garner (ed.), Black’s Law Dictionary, 8th
ed. (St. Paul Minasota: West Group, 1999) p.13.
 Amadi v. NNPC  10
NWLR (Pt.674) p.110.
 Ibid. Per OGUNBIYI, J.C.A. (P.18, Paras. B-E)
 P.O. Okoli, “Access to Justice and
Fair Hearing: An Evaluation of Pre-action Notice in Nigeria” African Journal of International and
Comparative Law 20:1 (2012) p. 71.
 (1985) 2 NWLR (pt.8), 552 SC.
 P.O. Okoli, loc.cit. p.71.
 B.A. Garner (ed.) op.cit. p.312.
 A.H. Blackwell, The Essential Dictionary of Law (New
York: Barnes & Noble,2004) p.56.
 Atolagbe v. Awuni (1997) 9
NWLR (Pt.522) 536.
 C.A Ogbuabor, “Towards a
Consistent Application of the Law of Pre-action Notice in Nigeria” Nigeria
Journal of Public Law (NJPL) vol.2 No.1 2009, pp.148-169.
 Ntiero v. Nigeria Port
Authority (2008) 10 NWLR (Pt.1094) p.146.
 Sheila Bone (ed.), Osborn’s
Concise Law Dictionary 9th ed. (London: Sweet & Maxwell, 2001)
 (1986) 5 NWLR (Pt. 46) p.1041.
  ANLR 136;  3 NCLR 88.
 Per Obaseki JSC (as he then was);
Ransom-Kuti & Ors v. A.G.F & Ors  2 NWLR (Pt.6) p.211.
 Iluyomade and Eka, Cases and
Materials on Administrative Law (Ibadan: University of Ibadan Press, 1980)
 Cap.P41 LFN 2004.
  12 K.L.R. 24 p. 89.
 Per Iguh JSC (as he then was).
 P.O. Okoli, loc.cit. p.83.
 (2006) 17 NWLR (pt.1007), 29 CA.
 Nigercare Development Company Ltd v. Adamawa State Government & Ors
(2008) 9 NWLR (pt. 1093) p.531.
 Ngelegla v.Tribal Authority
Nongowa  14 WACA 325.
 P.O. Okoli, loc.cit. p.77.
 High Court of Lagos State (Civil
Procedure) Rules 2004, Order 6 Rule 2(1).
 High Court of the Federal Capital
Territory (Civil Procedure) Rules 2004, Order 4 Rule 17.
 P.O. Okoli, loc.cit. p.77.
 High Court of the Federal Capital
Territory (Civil Procedure) Rules 2004, Order 23 Rule 4. Under the Abuja Rules, the defendant has fourteen days
after service of statement of claim and writ of summons on him to serve a
statement of defence.
 (2002) 18 NWLR (pt.798), 1 CA.
 P.O. Okoli, loc.cit. p77.
 Ibid. at 99.
 Retrieved from http://www.answer.com/topic/privilege visited accessed on 21/03/2013.
 C.A Ogbuabor; “Can Jurisdiction be
waived? Waiver and Jurisdiction in Cases Involving Pre-Action Notice: Nigercare Development Company Ltd v. Adamawa
state Government & Ors Revisited”, The Appellate Review, vol.1,
No.2, 2009/2010, p.222.
 Pat. Onegbedan (SAN) response to
the judiciary after his swearing in as a Senior Advocate of Nigeria
accessed on 21/03/2013.
 P. N. Okoli, loc.cit. p. 82.
 (Supra) p.36.
 ‘An individual may renounce a law
made for his special benefit’.
 ALLNLR 945;  12 SC.81.