An Over-Stretching Of The Settled Principle Of Law On Issuance Of Pre-Action Notice

By S.O. GIWA ESQ.

The use of provisions in the Statute, the Rules of Court and citing a host of authorities by legal practitioners to entreat court for the grant of clients’ claims and applications before the court is not unknown practice in the practice of law in Nigeria.

This ubiquitous practice is a good practice which entrenches the existence of the law in Nigeria, but some legal practitioners do use or apply the law without putting into consideration the distinctiveness of the facts of the case before the court for determination from the considered facts in those decided cases where such cited principle is established.

Giving stress to some provisions of law, Rules of court and authorities which they do not possess has been found to be a source of flooding our courts with filing of applications to challenge jurisdiction of the Court in matters before the court.

Filing of application by legal practitioners to challenge competence of a suit for reason of alleged non-service of pre-action notice has now been a routine practice of some lawyers in Nigeria who are fond of invoking on statutory provision and citing a host of authorities.

This act of invoking on statutory provision and citing a host of authorities in support of application for challenging jurisdiction of court often done to frustrate quick determination of an action and with little or no consideration of the applicability of the law and the distinctiveness of the facts of the case before the court for determination from the considered facts in those decided cases.

It is observed that it is a usual practice of some lawyers that once a Statutory Corporation or Local Government Council, a body created by a Statute, and the like is sued as defendant without a pre-action notice being served; filing preliminary objection to challenge the jurisdiction of the court is their considered step to be taken for their clients.

It is not gainsaid that those Counsel do hinge their objection of challenging jurisdiction of the Court on the ground of the failure of a party called ‘Claimant’ to comply with the Statutory provision which places obligation on a party to issue and serve pre-action notice on the adverse party, a body created by law or Statutory Corporation with citation of plenitude of decided cases in their written argument in support of their objection as authorities for their objection.

This practice of filing application to challenge jurisdiction of the Court to entertain the suit on ground of the failure of a party christened ‘Claimant’ to comply with the mandatory statutory provision which provides that a pre-action notice must be issued and served on the adverse party, a body created by law or Statutory Corporation, forms the springboard for the below fundamental questions which are calling for rational answers.

• What is a Pre-action notice in legal parlance?
• Are there no situations where issuance and service of pre-action notice on an adverse party which is a Statutory Corporation or body created by law does not constitute a condition precedent?
• Are the decided cases on pre-requisite of pre-action notice blanket authorities applicable to all situations?

Scouting for answers to the aforementioned questions prompts writing this piece with a view to making writer’s stand and recommendation where need be.

What is a pre-action notice?

In defining a pre-action notice by Ibrahim Tanko Muhammad, J.S.C in NTIERO v. NPA (2008) LPELR-2073(SC), his lordship says thus:

‘A pre-action Notice connotes some form of legal notification or information required by law or imparted 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 notified, before the commencement of any legal action against such a person.’ The underline is the writer’s for emphasis

The deductible points from His Lordship’s definition of a pre-action notice quoted above are that:

• A pre action notice is a form of legal notification or information
• A pre action notice is required either by law or imparted by operation of law
• A pre action notice is a legal information in an enactment or incorporated in an agreement or contract
• A pre action notice must be given by the person who is under legal duty to put on notice the person to be notified where it is required
• Issuance and service of same is before the commencement of any legal action against such person

It is crystal clear from His Lordship’s definition of a pre-action notice quoted above that it is not only by enactment that a pre-action notice is made a condition precedent; but also having issuance of pre-action notice incorporated as part of the terms in an agreement or a contract. Thus, a pre-action notice can be made a condition precedent either by the enactment or agreement between parties or contract entered into by the parties.

With the obvious fact evinced in His Lordship’s definition of a pre-action notice quoted above that either the enactment or agreement or contract can make a pre-action notice a condition precedent, one then wonders why some lawyers failed to be guided by various decisions of the Superior Courts particularly the Supreme Court being the Apex Court on the issue of pre-action notice before swinging into action by filing preliminary objection to challenge jurisdiction of court for non-service of a pre-action notice on the corporation or agency of the Federal Government or Local Government or Public Officer sued as defendant in an action.

It is observed that the springboard for filing preliminary objection by some lawyers to challenge the competence of the suit where there is non-service of pre-action notice is the decision of the Supreme Court in UGWUANYI V. NICON INSURANCE PLC (2013)11 NWLR (Part 1366) 546 that all suits, causes and matters whether or not it is contract of service or specific contract are within the ambit of the phrase ‘NO SUIT’ used in Section 26(2) of the NICON Act now Section 51(1) Cap. N53 Laws of the Federation, 2004 which provides

“No Suit shall be commenced against the corporation before      the         expiration of a period of one Month after written notice   of intention to commence the suit shall have been served upon        the corporation by the intending plaintiff or his agent…”

It is not gainsaid that the use of the decision by some lawyers as the basis for filing application to challenge the competence of the suit for failure of the party to serve pre-action notice is often used out of context and without considering the facts and issues decided in the said case.

It is crystal clear from meticulous reading of the case that UGWUANYI, appellant, was an employee of NICON INSURANCE PLC, the respondent, whose employment was governed wholly by the Handbook and the letter of appointment. In the Ugwuanyi’s appointment letter, Section 26(2) of NICON Act Cap 263 Laws of the Federation of Nigeria, 1990 was incorporated as an enforceable term of the conditions of service of Ugwuanyi’s contract of service.

It is to be noted that apart from the above summarized facts, the issue determined by the court was ‘whether pre-action notice is applicable to contracts of service or specific contracts in the case?’  It is on this that the decision which some lawyers do use as basis was held.

It is worth saying that the writer is not oblivious of the fact that major purpose of pre-action notice is to promote and give out of court settlement a preference and 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 but the writer’s stand is that the statutory provision that pre-action notice must be issued and served does not apply to cases of contract.

It is the writer’s stand that pre-action notice would only become a condition precedent in cases of contract involving Statutory Corporation or a body created by law where such statutory provision is incorporated in the said contract and failure to fulfill the said condition would oust the court of its jurisdiction.

Fortifying the writer’s stand that statutory provision on mandatory service of pre-action notice on Statutory Corporation would only become operative and applicable to cases of contract where the said provision is incorporated as a term of the contract between the parties is the case of Warri Refining & Petrochemical Co. Ltd vs. GECMEP Nigeria Limited, wherein Hon. Kudirat Motonmori Olatokunbo Kekere-Ekun JSC with reference to cases of NPA Vs. Construzioni and Wema Securities & Finance Plc. vs. Nigeria Agricultural Insurance Corporation (2015)16 NWLR (Part 1484) 93 held thus:

‘‘In the decision of NPA v. CONSTRUZIONI (supra), the Supreme Court dealt extensively with a similar provision, being Section 97 of the Ports Act and its sub-sections (1)and(2) which are inpari material with those of Section 12(1) and (2) of the NNPC Act. In that case, the Supreme Court found that, Section 97 (1) of the Ports Act applies to everything done or omitted to be done under the Act. Thus, it would be stretching the meaning of the provision too far, if it is extended to specific contracts. Specifically, in WEMA SEC. FIN. PLC v. N.A.I.C (2015)16 NWLR (Part 1484) 93, it was held inter alia, that ‘It is now settled law that Section 2 of the Public Officers (Protection) Act and all such enactments similarly worded like it… do not apply to cases of contract. … To hold otherwise, would be to negate the general principles upon which the law of contract is based.’’

 Based on the foregoing, the Court held that, the transaction between the parties, being one of simple contract, and having not expressly incorporated the provisions of Section 12(2) of the NNPC Act as terms of the contract, it follows that the said provisions are not applicable to the instant suit, and the Respondent’s suit was properly instituted.’’ The underlines are the writer’s for emphasis.

The writer reiterates his stand that the statutory provisions on the pre-requisite of pre-action notice only applies in cases of contract where the said Statutory provision is incorporated in the agreement as term of the contract but where there is no such incorporation of the statutory provision in the agreement, the statutory provision on pre-requisite of pre-action notice does not apply and the court has jurisdiction where there is no issuance and service of the pre-action notice. Thus, the prerequisite of pre-action notice only becomes a condition precedent in cases of contract where the statutory provision for issuance of pre-action notice is incorporated in the agreement between the parties.

It is worth re-echoing that non-issuance and non-service of pre-action notice on Federal Government Agencies or Statutory Corporations in a matter involving contract with no clause incorporating statutory provision on pre-action notice as condition precedent in the agreement or letter of employment or condition of service does not oust court of its jurisdiction and placing heavy reliance on the Statutory provision in a case involving contract with no clause incorporating statutory provision on pre-action notice as condition precedent in the agreement should be put a halt to for good practice.

It is to be noted that though the existed relationship between the parties in AMADI V. NNPC (2000) 10 NWLR (Part 674)76 was a contract of employment; the decided issue inter alia for the holding of court ‘that the omission to state the name and address of the intending plaintiff cannot be an essential precondition for commencing an action against the Corporation where a solicitor or agent is required for service’ was the inadequacy of the pre-action notice  required under Section 11(2) of the Nigerian National Petroleum Corporation Act, 1977 issued by Amadi’s lawyer and not issue of non-service of pre-action notice.

It must be borne in mind that the existence of provision in a Statute which makes a pre-action notice a condition precedent for the commencement of action against Statutory Corporation or a body created by law does not impose any legal obligation on a party whose cause of action arose from breach of contract which is bereft of a clause incorporating the said statutory provision in the agreement.

It is not in doubt that there exist is plenitude of decided cases by Superior Courts on the effect of non-issuance and non-service of a pre-requisite of pre-action notice on the jurisdiction of courts where a pre-action notice is made a condition precedent before an action is initiated.

It is important to note by way of reiteration here that decided cases are authorities for what they decided and only the facts of the case influence and determine the application or applicability of the principle. Thus, for an authority to be relevant, it must be on all fours the same with the facts and law in issue. See the cases of Magaji vs. Nigerian Army (2008) All FWLR (Part 420) 603@632 para. F and Ngige vs. Obi (No.1)(2012)1NWLR (Part 1280) 40@60-61 paras. H-A

It is the writer’s stand that invoking on statutory provision which imposes obligation on a party to serve pre-action notice within prescribed period without any efforts being made to find out whether the alleged breach of contract against the Statutory Corporation has an agreement which incorporate the statutory provision in question amounts to giving stress which the said statutory provision does not possess.

It is the writer’s stand that there is need for caution and proper use of the said statutory provision and settled principle of law on the pre-action notice and legal practitioner who wishes to invoke on the statutory provision which places obligation on a party to issue a pre-action notice to include required information and serve same on the adverse party must put into consideration the cause of action which gives right to the party to sue and if authorities are to be used to fortify and support application to be filed to challenge jurisdiction of the court for whatever grounds, he (legal practitioner) should patiently read through the facts of the case, the holdings of the court and relate them to the facts of the case before the court.

It is the writer’s stand that though holding of the court in NTIERO v. NPA (2008) LPELR-2073(SC) is that failure of the party to issue and serve pre-action notice, a condition precedent, deprive the trial Court of any competence or Jurisdiction to try the case; citing of this case as authority for the established principle therein requires proper understanding of the case vis-à-vis the facts and law considered in the case.

It is crystal clear from the facts of this case that Dominic E. NITIERO, the appellant, was a staff of N.P.A, the respondent, a Federal Government Agency, and filed an action at the trial Court claiming damages for wrongful dismissal. The respondent raised objection at the trial of the suit as there was no one month pre-action Notice to the respondent as required by law. The trial Court dismissed the objection. On appeal, the respondent’s objection was upheld and court dismissed the suit.

It is not in doubt that the likely argument from some readers might be that the parties were employee and employer and the facts of the NITIERO’s case which gave right to the party to sue arose from contract of service with a neglect to the issue decided in the said NITIERO’s case.

It is importantly important to refresh memory that part of the issues determined was: ‘whether Section 97(2) and 98 Ports Act were properly applied to the case of the appellant (found on a Contract of service)?’ For easy reference, the provisions of those sections re-enacted as Sections 110(1) and (2) and 111 of the Ports Act (Cap. 361) Laws of the Federation of Nigeria, 1990 and provision of Section 110(2) of Cap 361, LFN, 1990 provides as follows:

“(2) 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.”

It is interesting to note that not that Dominic E. NITIERO, the appellant, did not issue or serve pre-action notice but the pre-action notice issued was addressed to the General Manager, rather than to the Chairman or the Secretary of the Authority, as required by Section 111 of the Act and his pre-action notice did not contain any statement as to what the ’cause of action’ is, nor ‘the name and place of abode of the intending plaintiff, and the relief which he claims’ as required by Section 110(2) i.e. the equivalent of former Section 97(2) of the Act.

It is to be noted that issue of inadequacy of the pre-action notice forms part of the issues determined in NITIERO’s case which on all fours the same with the issue decided in Amadi’s case by the court, citing the Amadi’s case on that inadequacy of the pre-action notice with the holding of the court and relating facts in Amadi’s case to the case before the court would be appropriate as same may influence the decision of the court on the issue. Fortifying this is the writer’s stand that only the facts of the case influence and determine the application or applicability of the principle and lawyers who are fond of citing authorities out of context should avoid doing so in the best interest of good practice.

Besides, it is the writer’s opinion that if there exist evidence either letter of employment or handbook which spelt out condition of service with no clause incorporating the statutory provision on pre-action notice as term of the contract of service, issuance of pre-action notice would not have been necessary and the issue of addressing pre-action notice to wrong person would not have arisen and the court would not have come to such holding that Dominic E. NITIERO did not comply with the provision of the Act before commencing his action.

It is the writer’s further opinion that issuance of defective pre-action notice by Dominic E. NITIERO found by the court evinced that he had agreed to be bound by the provision of the said Act and fact admitted needs no further proof.

It is the writer’s further stand that though there is no evidence that Dominic E. NITIERO executed any agreement vis-à-vis the contract of service he had with N.P.A for one to ascertain whether the statutory provisions of the Act considered in the case were incorporated in the said agreement as term of the said agreement or not.

It is however, the writer’s recommendation that the aged lingering notion that the statutory provision on pre-requisite of pre-action notice applies to all cases should be dislodged and practice of filing application to object to the jurisdiction of the court to hear the matter simply because no service of the pre-action notice was made before action is instituted should be stopped.

It is finally recommended that efforts should always be made to ascertain whether by the nature of the claimant’s claim and document (agreement) accompanying the claim, the issuance and service of the pre-action notice is necessary or not.

It is hereby advised that where action is instituted against Statutory Corporations and the cause of action arose from alleged breach of contract without any pre-action notice being served before its institution, efforts should be made to ascertain whether there is incorporation of the statutory provision in the agreement between the parties or not before filing an objection to the suit on the ground of alleged incompetence of the suit as doing this would save precious time of the court and thereby promote quick determination of the case without unnecessary delay.

Written By S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner). giwa_pentalk@yahoo.com 08035224192