Pre-Action Notices in Civil Trials: The Controversies and the Place of Jurisdiction – Davidson Edieya



A brewing controversy has emerged in our legal jurisprudence as a result of the requirement of pre-action notice before commencing certain civil suits. The controversy is further complicated with the advancement of the argument that failure to issue pre-action notice in civil trials is a mere procedural irregularity which is waivable and by extension does not affect the root of the case. Whereas there have been other positions disagreeing with the aforementioned argument to the effect that pre action notice is a key component of jurisdiction[1] and failure to comply with the requirement of pre-action notice renders the proceedings of the court a nullity. 

In this paper, the writer intends to review the key decided authorities, sometimes conflicting in this regard. A review of relevant statutory provisions will also be undertaken to ascertain whether pre-action notice is waivable and become curable by the claimant vis a vis the place of jurisdiction in this regard. Most importantly, it shall be submitted that since a condition precedent is a key component of jurisdiction, hence the fundamental nature of jurisdiction of court cannot be over looked with mere procedural or technical arguments.


The supreme court of Nigeria in the case of NIGERIAN PORTS PLC V. S.E.S LTD[2] while explaining the meaning and nature of pre-action notice stated as follows:

A pre-action notice by the plaintiff to the opponent of the reason why the plaintiff is instituting a legal action against the opponent, and the purport of it, is to intimate the opponent of what to expect or to be confronted within the course of the legal proceedings. The law requires that a plaintiff must meet all the requirements contained in the relevant statute, for it is by so doing that the defendant will be seised of the action contemplated against the defendant, so that the defendant can give the claim a proper consideration on the step to take e.g whether to contest the action or settle out of court.

From the foregoing 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 i.e the defendant before the commencement of a valid action. It is worthy of mention that, it is not any kind of letter or correspondence written to the prospective defendant that qualifies as a pre-action notice. This position has been judicially explained in the case of NIGERIAN PORTS PLC V. NTIERO[3] where the court held as follows:

A pre-action notice is a letter usually given by the intending plaintiff’s solicitors to the prospective defendant, giving him notice against him for the recovery of whatever money that was being owed to prospective plaintiff, or to remedy whatever the cause of action was, usually within seven days, failing which legal proceedings would be instituted. In this case exhibit “6” cannot operate as  a pre-action notice properly so called as it did not meet the requirement  of section 110 (2) of the ports Act, Cap 361, Laws of the Federation, 1990.

From the above judicial authority, it can be deduced that failure to serve a pre-action notice where it is so prescribed by statute is not a mere irregularity rather it is a condition precedent of which failure to comply with deprive the trial court of any competence or jurisdiction to try the case[4].

It is noteworthy that a pre-action notice is not limited to statute alone but at times also by contract which is given by a prospective plaintiff to a prospective defendant informing or intimating the defendant in respect of violation of plaintiff’s right by the defendant[5].

It is therefore incumbent on the court that once a defendant raises an objection as to non-compliance with condition precedent to the exercise of court’s jurisdiction, it is for the court seised of the proceedings to examine the objection and ascertain whether it can adjudicate[6].

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There has been retinue of decided authorities in this respect and examination of some in this regard is very important. In O.A.U v. OLIYEDE & SONS LTD[7]  the respondent (as plaintiff) filed a suit against the Appellant (as defendant) at the Osun State High Court claiming a declaration that the purported determination of the contract between the plaintiff and the defendant is wrongful, null and void. The plaintiff also claimed pecuniary relief. The defendant, after entering a conditional appearance, filed a motion to strike out or dismiss the suit on the ground that it was incompetent, premature, null, and void for non-compliance with the provisions of section 46 (I) of the Obafemi Awolowo University Act, Cap 334, Laws of the Federation 1990. The section reads as follows:

  1. 46 (I) No. suit shall be commenced against the University units at least three months after written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent and such notice shall clearly state the cause of action, the particularly of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.

The plaintiff argued that their solicitors letter addressed on their behalf to the defendant met the requirement of section (46 (I) of cap 334. The trial court upheld plaintiff’s argument and dismissed the motion. The defendant being dissatisfied with the ruling appealed to the court of Appeal (Ibadan Division). The court of Appeal held that the notice given by the plaintiff’s solicitor is invalid, for reasons of non-compliance with statutory prescription in section 46 (I) of cap 334. That apart from the fact that the letter was not addressed to the proper person, it neither contained the abode of the plaintiff nor his cause of action and particulars of claims. To that extent, the plaintiff’s action was held to be incompetent and the jurisdiction of the court thereby ousted.

On the strict requirement of pre-action notice by laws, in the case of SHAIBU v. NAICOM[8] the court of Appeal while considering this position held as follows:

Where the necessary statutory notice required before the commencement of an action is not given as in the instant case, such a suit is invalid and ought ordinarily to be struck out by the court because the court has no jurisdiction to hear same and ie would be futile to exercise jurisdiction whose there is none.

Here, the court perhaps followed the strict position to the effect that pre-action notice is a condition precedent and failure to comply with condition precedent robbed the court of jurisdiction. In SHAIBU v. NAICOM (supra) the court further stated as follows:

The law prescribes a condition precedent to the competence of action and where such condition precedent is not complied with; the action commenced should not be entertained by the court. In the instant case, since the appellant did not give the required 30 days pre-action notice which is a condition precedent to competence of the action, the action should not be entertained       

Similar decision was also taken in the case of PPMC LTD v. AL-MUSMOON SEC.LTD[9] where the court in relying on the case of NNPC v. FAWEHINMI[10] and ODOEMELAM v. AMADIUME[11] stated that

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Where a pre action notice is statutorily required for any action or suit commenced without giving the required pre-action notice is incompetent and it is liable to be struck out. In the instant case by the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a precondition to the competence of an action was not complied with. In the circumstance the action was struck out.

All the examined authorities above seems to have a common inference which is to the effect that failure to comply with pre-action notice where required, it robed the court of jurisdiction to entertain the matter.

However there was a summersault by the Supreme Court before now in the case of EZE V. OKECHUKWU[12] which many authors and practitioners still hold as a good Supreme Court decision. In EZE V. OKECHUKWU’S case[13] the main contention was whether the high court has jurisdiction to hear and determine suit No. HN/67/88 properly ignited when it essayed to hear and determine the matter without the Plaintiffs complying with pre-action notice prescribed under section II (2) of state proceedings law, cap131, vol.4 laws of Anambra State upon appeal to the Supreme Court, Per Uwaifo JSC[14] stated as follows:

The requirement of pre-action notice where this is presented by law is known to have one rationale. It is to apprise the defendant before hand of the nature of the action contemplated and to give him enough time to consider or reconsider his position in the matter as to whether to comprise or contest it. The giving of pre-action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant expected to defend the action that may follow. 

Per Uwaifo JSC[15] further stated that pre-action notice is a requirement that can be waived. He put it thus:

It is said that waiver is the intentional or voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. It also arises when one dispense with the performance of something he is entitled to whether conferred by law or by contract, with full knowledge of the material facts; or when a person does or forbears to do something, the doing of which is inconsistent with the right, or his intention to rely or insist upon it. It irregularly, or wrong in the act or action of another through acquiescence, surrender of the right to so.

With due respect to the Supreme Court in relation to the above subject matter, it is not totally correct that pre-action notice which is a condition precedent where required before commencing a civil suit is not substantial. The Supreme Court also did not avert its mind to the authority of MADUKOLU v. NKEMDILIM which stated the components of jurisdiction to include condition precedent of which pre-action notice falls within. What is more worrisome about the above decision is the fact that the court has absorbed the requirement of pre-action notice as procedural. This in effect implies that the necessity for it can be waved. His lordship said inter alia:

A defendant who is entitled to a pre-action notice… ignore the fact the irregular commencement of the action and decided or acquiesces to waive his right to a pre-action notice[16]

It is also the reasoning of the Supreme Court in that case that  the jurisdiction should be merely put on hold pending compliance with the pre-condition i.e pre- action notice

In spite of the Supreme Court’s decision in later cases after Eze v. Okechukwu’s case, some authors and practitioners still rely strongly on Eze v. Okechukwu’s case which may make the problem associated with pre-action notice not yet completely cured.

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We have in this paper attempted to demonstrate the fact that our courts in spite of agreeing that pre-action notice is a component of jurisdiction seems to still have issues as to what decision to follow in respect of the above.

It is therefore the writer submission that where the court is faced with the quagmire of which decision of the Supreme Court to follow, the court should follow the later on that behalf as held in the case of OSAKWE V. FEDERAL COLLEGE OF EDUCATION, ASABA[17]. In Osakwe’s case, Ogbuagu JSC  had this to say.

Those who think they are very knowledgeable than court, if they have listening ears, let them hear and take care. I have gone this far, because the learned justices of the court of Appeal in the University of Ilorin v. Adeneran (Supra), who claim or assert to be “torn between the two judgments of this court” should please take note and come to terms with the doctrines of stare decisis, precedents and hierarchy of the courts, which are clear and unambiguous. They are indispensable foundation. For the umpteenth time, where there appear to be conflicting judgments of the court the later or latest will or should apply and must be followed if the circumstances are the same”

It is humbly submitted that the court should adhere to the doctrine of state decisis when resolving a question before it rather than using mere logic or technicality to defeat the law as it is.

Furthermore the effect or consequences of not complying with pre-action notice should be expressly stated in a contract or statute as the case may be so that the court will not have difficulty in interpreting same should it be a subject of litigation. Until the Supreme Court hold otherwise, the appropriate authority on this subject matter remains those authorities decided after Eze v. Okechukwu’s case in 2002 which is to the effect that compliance with pre-action notice is central and therefore a condition precedent before instituting certain civil actions.

Davidson O. Edieya, ESQ LL.B HONS (AAU, Ekpoma) B.L is a Legal practitioner and a Senior Partner at Primus-Lords Solicitors.


[1] See MADUKOLU V. NKEMDILIM (1962) 2 SCNL 341 where the court held amidst other requirements which gives a court jurisdiction to include that “the case comes before the court initiated by due process of law and upon fulfilment of condition precedent to exercise jurisdiction’’ [Underlining is mine for emphasis]

[2] (2016)17 NWLR (PT 1541) P.191 at 212, Paras A-C

[3] (1998) 6 NWLR (PT 555) 640 at 650-651 Paras H-B

[4] See ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (PT 109) P.250 AT 274; MADUKOLU V. NKEMDILIM (Supra); UMUKORO V. NPA (1997) 4 NWLR (PT 502 )

[5] See E. A Agbale, “Pre-Action Notice and the Right of Access to Court”, Ambrose Alli University Law Journal (2003), Volume 1, No 2 at P. 35

[6] P. 35 (Supra)

[7] (2002) All FWLR  Pt 105, 799 at Pp 818-819

[8] (2002) 12 NWLR (Pt 780) 116

[9] (2016) 13 NWLR (Pt 1528) P. 69 at Pp 78 Paras C, P.78-80 Paras H-A

[10] (1998) 7 NWLR (Pt. 559) 598

[11] (2008) 2 NWLR (Pt 1070) 179

[12] (2002) 12 SC (part 11) 103;Parralel citation at (2003)  2 MJSC. 188; (2002) LPELR-SC 147/1998

[13] (Supra)

[14] Supra at P.13 Paras B-D (LPELR- SC Citation)

[15] at page 15 Supra

[16] Per Uwaifo JSC Pp. 199-200(MJMSC Citation)

[17] (2010) 3 SCNJ P. 529 at 546


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