Introduction.
Pre-action notices have become pivotal in the evolution of our civil processes in Nigeria, with the concept finding its way into our rules of court, practice directions, and procedures and our various laws which established various government agencies in Nigeria. Essentially, the concept has become a mainstay in our civil processes such that non-compliance can be fatal to the dispute resolution process, depending on the circumstances of the case. To state more clearly, it may rob the court or any other adjudicatory body or tribunal of the requisite jurisdiction to proceed with the determination of the dispute before it.
This article aims to examine the situation as it relates to pre-action notices in civil procedure.
Pre-action Notices.
Essentially pre-action notices are notices usually in the form of a letter issued by an intending plaintiff or claimant(s) who believes that his legal rights have been infringed by a defendant, with the intent of notifying such defendant of his intention to seek legal remedies or redress against such defendant usually before a court unless the defendant settles the plaintiff’s claims against him without the need of employing the process of the court.
The essence of the plaintiff issuing this pre-action notice to the defendant is to afford the defendant the opportunity to know the claim against him and take a position in respect thereof. Some of the positions that can be taken by a defendant issued with a pre-action notice are to either; admit/accept the claims and settle it with the plaintiff without more or deny the claim(s) in its entirety; admit parts of the claim(s), request for further clarifications on the claim(s) or simply ignore the pre-action notice, amongst other positions.
Pre-action notice requirements can be found in the procedural rules of court, practice directions, and various statutory provisions some of which are discussed below.
The Lagos State High Court (Civil Procedure) Rules 2019 contains a general requirement for parties to take certain steps with the aim of resolving the dispute before initiating proceedings in Court[1] but more specifically[2], provides claim-specific pre-action protocol requirements which, since their introduction, have stipulated the various periods within which a prospective claimant and defendant are supposed to engage in pre-action discussions.[3]
The responsibility is therefore on an intending claimant in action to be brought under the High Court Rules of Lagos State to comply with the pre-action requirements and more specifically to each category of the claim as set out in the rules and practice directions. Non-compliance is usually met with varying degrees of procedural and jurisdictional sanctions[4] and these sanctions have been the pith and substance of several judicial decisions in Nigeria.[5]
On the statutory front, various enactments provide various cooling-off periods during which the relevant parties are to take steps to resolve the dispute. For instance, the provisions of section 17 of the Companies and Allied Matters Act (2020) provide that an action against the Corporate Affairs Commission (“the Commission”) shall not be commenced before the expiration of 30 days after a written notice of intention to commence the suit is served upon the Commission by the intending plaintiff. The notice to be served on the Commission is to clearly state the cause of action, particulars of the claim, name, and place of abode of the intending plaintiff, and the relief sought.[6]
Similarly, section 308 of the Petroleum Industry Act (2021) also prescribes a month’s notice period to be served on the Nigerian Upstream Regulatory Commission (NUPRC), Nigerian Midstream and Downstream Regulatory Authority (NMDRA), and any officer in the employment of either the NUPRC and NMDRA before filing an action against any or all of them in court.
Nigerian courts are no strangers to rendering decisions on the effect of procedural or statutory non-compliance as it relates to various pre-action requirements found in the various rules and statutes currently in force in the country. In the case of NICON INSURANCE PLC v. ANAGBA VENTURES LTD (2018) LPELR-46672(CA) the Court of Appeal explained the purpose of pre-action notice and the effect of non-compliance with the requirement of a pre-action notice when it held that: –
“The rationale behind pre-action notice is to enable the defendant know in advance the expected action and if possible, find an amicable means of settlement without recourse to litigation. It also gives the defendant an opportunity to adequately prepare its defence. See the cases of ABUJA MUNICIPAL AREA COUNCIL v C.N. OKOLI TRANSPORT CO. LTD (2009) LPELR – 3579 (CA); EZE v OKECHUKWU & ORS (2002) LPELR – 1194 (SC). So therefore where an enabling statute provides for pre-action notice, unless it is waived by the party entitled thereto, it must be complied with before an action can be said to have been properly instituted. Failure to so comply renders the action ineffective and liable to be struck out. In effect, the jurisdiction of the Court is put on hold pending compliance.”
What can be inferred from the above decision, is that generally, a statutory agency such as those already mentioned has a right to be notified of a suit against them and unless it waives this right[7], non-compliance with same could render a suit incompetent or irregular. This was the purport of the decision of the Supreme Court in Ntiero v. NPA (2008) 10 NWLR (Pt.1094) 129.
In AKAHALL & SONS LTD v. NDIC (2017) LPELR-41984(SC), the apex court elucidated on the jurisdictional implications of pre-action notice when it held in summary that non-compliance with the pre-action notice requirements in a suit may be treated as a mere irregularity or a jurisdictional/substantive issue that goes to the root of the case thereby robbing the court of the requisite jurisdiction to adjudicate over the dispute. What is commonly found with respect to these pre-action notices is that they have jurisdictional implications which must be examined by the court to determine the effect of non-compliance in the circumstances of each case.
Non-Compliance, is it fatal?
As already stated above, non-compliance with the pre-action requirements is an issue that touches on the jurisdiction of the court to handle a matter. This position accords with the general principle inherent in the above discussions and upon closer examination of positions taken by the Nigerian courts it clearly shows that there are exceptions to the fatality effect of non-compliance with pre-action notice requirements to wit; it may be waived by the party who owns that right or be construed as a mere irregularity in some cases notwithstanding the protestations of the relevant party.
Exceptions to pre-action requirements.
Fundamental Right Enforcement Procedures.
One of the procedural exceptions to the requirements for the issuance of pre-action notice relates to the enforcement of the Fundamental Human Rights which are enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended). This was the purport of the decision of the Court of Appeal in the case of OBASI & ORS v. FADEYI (2020) LPELR-51758(CA) the court essentially stated that the requirement of pre-action notices as it relates to the cases of fundamental rights cannot succeed in the face of the provisions of Section 46 (1) – (3) of the Constitution. The court noted the implication of these constitutional provisions’ vis a vis the requirement of pre-action notices when it held that: –
“An action for the enforcement of Fundamental Rights guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) is in a special class of its own. That is why it is governed by a special procedural rules made by the Chief Justice of Nigeria pursuant to Section 46 (3) of the Constitution. Section 46(1) of the Constitution gives any person who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or likely to be contravened in relation to him the right to apply to a High Court in the State for redress immediately without any inhibition under any law. The necessity to prevent an infringement of fundamental rights or seek redress for an infringement of the fundamental rights guaranteed by the Constitution overrides the necessity for service of pre-action notice. See UMUAHIA CAPITAL DEVELOPMENT AUTHORITY v. IGNATIUS & ANOR. 2015 (CA) 24910 AT 19-22 (A-B).”
What is clear from the above decision is that the provisions of the 1999 Constitution of the Federal Republic of Nigeria remains supreme to any other statute in Nigeria particularly on issues where the legal rights are donated by the Constitution itself. Some lex specialis (special legislation) may provide for time within which objections may be registered or protestation made in respect of acts or omission that may impact a right. For instance, various tax legislations provide for time to object or protest tax assessments and perhaps seek remedies against the tax authorities. Protestation may be constituted in a denial of liability letter and immediate recourse to the relevant tax tribunal without complying with the cooling off period which may be contained in the statute establishing the tax authority.
Waiver
Another exception is inherent in the above discussions on pre-action notices is that the requirement can be waived by the defendant who does not wish to raise it as an issue or include it in his pleadings before the court. However, where the defendant raises it, the requirement must be complied with before further steps can be taken in the matter.[8]
Furthermore, courts have also noted that with reference to the pre-action protocol requirements of the Lagos High Court Rules which do not prescribe any format for the issuance of the pre-action protocol Form 1 by an intending claimant. The import of the decisions on this point is that once Form 1 and the documents in support thereof show that the Defendant was indeed notified of the claimant’s intention to pursue an action against him in court, the process can not be said to be non-compliant with the rules of the court because it is not in the proper format. Therefore, non-compliance, as to the form of the pre-action notice under the Lagos High Court Rules, is incapable of invalidating or rendering the suit incompetent, it is to be treated as a mere irregularity. This was the purport of the decision in Spog Petrochemicals Ltd. v. P.P.L. Ltd (2018) 1 NWLR (2018) 1 NWLR (Pt. 1600) 321.[9]
Conclusion.
The introduction of pre-action requirements in the dispute resolution process in Nigeria was certainly introduced to facilitate the resolution of disputes between parties informally prior to approaching the courts. Ordinarily, it was meant to be a shield to afford the benefit of the doubt to parties to right their wrong before a dispute becomes full-blown in court. However, over the years the intent behind its introduction has led to various levels of mischief where in some cases non-compliance with this requirement may prove fatal to a dispute resolution process.
It is pertinent to note that the Nigerian courts are still on the long road to recovery in the aftermath of the impact of COVID-19 on the court systems and processes. Therefore, parties and practitioners are enjoined to take full benefit of these various pre-action notice requirements in our various statutes and rules of court while bearing in mind the exigencies of their respective cases.
Ultimately, it is the circumstances of each case that will determine the implications of non-compliance with certain pre-action notice requirements in our civil procedure processes.
Authors: Mr. Oludayo Ayeni
Footnotes
[1] See Order 2 Rule (1) (v) & Order 5 Rule 1 (2) & Rule 5 (3). See also the preamble of the High Court of Lagos State (Civil Procedure) Rules 2019.
[2] High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No. 2 of 2019 Pre-Action Protocol.
[3] For example, look at the time frame within which the Claimant is to allow, and the Respondent is to respond to the pre-action letter of claim in action founded in defamation and mortgages in the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No. 2 of 2019 Pre-Action Protocol.
[4] See Order 7 of the High Court of Lagos State (Civil Procedure Rules) 2019 & Practice Directions No 2 of 2019. See also the case of DREXEL ENERGY & NATURAL RESOURCES LTD & ORS v. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962(SC) on the importance of commencement of a suit to the determination of the issue of jurisdiction.
[5] For example, in the case of EDEH v. ENWELUM (2013) LPELR-21873(CA) where the Court of Appeal held thus “Where the Rules of Court provide for a particular format or procedure for the commencement or initiation of an action, a person commencing or initiating any action thereunder, is bound to follow or comply with that format or procedure, failure to do so would render such action incompetent. See also Ezekwesili v. Onwuagba (1998) 3 NWLR pt. 541 p. 217 and Mudashiru v. Persons Unknown (2005) 8 NWLR (Pt. 982) P.267 @ 219.”
[6] Section 17 (2) of the Companies and Allied Matters Act (2020).
[7] See also Ojo & Anor V. National Pension Commission & Anor (2019) LPELR-47839(SC).
[8] See Ntiero v. NPA (Supra) and Odu’a Investment Co. Ltd V. Talabi (1997) LPELR-2232(SC) on waiver.
[9] See also the decision of the Court of Appeal in TOF Energy Co Ltd & Ors V. Worldpay Llc & Anor (2022) LPELR-57462(CA).