A CRITIQUE ON THE DOCTRINE OF PRE-ACTION NOTICE IN NIGERIA
- Definition of Terms
1.1.1 Access to Court
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 courts.
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.
1.1.2 Condition Precedent
Condition 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.
1.1.3 Pre- action Notice
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.
Pre-action notice 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 plaintiff. It was described thus:
A pre-action 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.
Pre-action protocols (protocols) was defined as steps required to be taken by litigants under the Civil Procedure Rules 1998 prior to the commencement of proceedings.
- Historical Background of Pre-action Notice in Nigeria
The historical 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 judicial review.
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 sued thus:
The (Nigerian) 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 Constitution.
Administrative 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.
What the government or State normally relied on is the provision of Public Officers Protection Act which was equally shrouded with a lot of controversies.
The emerging 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.
The Constitution 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.
- Rationality of Pre-action Notice
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.”
The rationale 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 court.
Another reason 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.
It 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 been broken.
In 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 frivolous.
Thus, 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 the court.
Apart 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 settlement.
This 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 case. 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 and dismissal’. 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
It 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 the suit.
The 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.
There 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.
The 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.
Furthermore, 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.
On 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. Ibid.  (1985) 2 NWLR (pt.8), 552 SC.  P.O. Okoli, loc.cit. p.71. Ibid. Ibid.  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. Ibid.  Sheila Bone (ed.), Osborn’s Concise Law Dictionary 9th ed. (London: Sweet & Maxwell, 2001) p.308.  (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) p. 238.  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. (Supra). 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 retrieved from http://www.africanoutlookonline.com/index.php?option=com_content&view=article&id=2683%Anba-boycotts_San-Swearing-in&itemid=29copy 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.