TITLE OF THE ARTICLE: The Effect of Non-Service of Pre-Action Notice on the Competency of Courts to Entertain a Matter.
AUTHOR:
BENSON A. OLOWORARAN, LL.M, BL, Legal Practitioner, Port Harcourt.
ABSTRACT:
The requirement of serving a pre-action notice as a fundamental pre-condition for triggering the jurisdiction of courts is always imbedded in statutes meant to protect public bodies. Though non-service of pre-action notice may affect the competence of the court to adjudicate on any matter in which it is required, the necessity of serving a pre-action notice may, if dispensed with by the party entitled to it, not affect the jurisdiction of the court. This position has met with divergent judicial as well as juridical pronouncements. While some decided cases tend to establish that pre-action notice affects the jurisdiction of the court and cannot be waived, others emphatically hold the position that the requirement of serving a pre-action notice can be dispensed with if waived by the party entitled to it. Conceding that the requirement for pre-action notice can be waived, there must be a point at which the defendant cannot rely on it again at the trial court. Cases establishing that pre-action notice can be waived are not in consensus on when the privilege of pre-action notice would be said to have been waived. This article reviews the leading Supreme Court cases on this issue and adopts the position that statutory requirement for pre-action notice can be waived by the party entitled to it and should be so held if the non service of same is not raised as a preliminary issue or pleaded as a defence. The paper also examines the jurisprudential basis of pre-action notice, the latest pronouncement on the issue by the Supreme Court in the case of Feed & Food Farms (Nigeria) Ltd v Nigerian National Petroleum Corporation and compared the position on the issue in Nigeria with other jurisdictions to recommend that pre-action notices where it is required to be served and it is not served ought to stay the action if the party entitled to it is interested in pursuing arbitration only, and not to have the effect of striking the suit.