Failure to Serve Pre-Action Notice in Fundamental Rights Enforcement Action in Nigeria – Chidera Nwokeke

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Ubi jus ubi remedium means for every wrong, the law provides a remedy. This implies, where there is a wrong, remedy will follow thus. However, before a person can commence any action in court, there are certain preliminary factors or conditions that a party must consider. One of those preliminary considerations includes jurisdiction and the court in litany of cases particularly the celebrated case of MADUKOLU & ORS V NKEMDILI, the court stated three conditions that must be in existence before the court can be said to have jurisdiction. These are:

  • There must be constitution as to qualification and numbers of members of the bench and no member is disqualified for one reason or another
  • Subject matter of the dispute must be within the jurisdiction of the court and no feature in the case which prevents the court from exercising its jurisdiction
  • The case must have been brought to court in accordance with due process after satisfaction of relevant provisions on condition precedents.

Deducing from the decision of the court in the abovementioned case, there are condition precedents which are to be met before the commencement of certain actions in court and such condition must be fulfilled by the plaintiff or applicant. The court in the case of PANALPINA WORLD TRANSPORT HOLDING AG V JEIDOC LTD & ANOR (2011) LPELR-CA/L/522/2009 held that condition precedent is an act that is to be performed before some right, dependent thereon accrues. One of such condition precedent includes pre-action notice.

The court in the case of UTEK V OFFICIAL LIQUIDATOR (2009) ALL FWLR PT 475 OF 1774 @ 1791-held that where a plaintiff commences action which require the fulfillment of a condition precedent or pre-condition for the commencement of the action, that condition must be fulfilled before the action can be validly commenced.  Where there is non-compliance with a stipulated pre-condition or setting the legal process in motion any suit Instituted in contravention of that condition is incompetent to entertain the suit. The Court in another case of AGIP NIG LTD V AGIP PETROL INT’L (2010) ALL FWLR (PT 520) P.119 held that where by a rule of Court, the doing of an act of taking a procedural step is a condition precedent to the hearing of a case,  such rule must be strictly followed and obeyed.  Non-compliance with a condition precedent is not a mere technical rule of procedure; it goes to the root of the case. The court will not treat it as an irregularity but as nullifying the entire proceedings.

This article aims at perusing whether failure of a party to serve pre-action notice to a defendant can be a limitation in a fundamental right action. A succinct view on pre-action, its purposes, exceptions and its place in fundamental rights action will be germane in this article.

Pre-action notice is a written notice required by a statute to be served on the appropriate body, of an intention to sue them by the intending plaintiff. Pre-action notice is a statutory privilege granted to the defendant and can be waived by the person. Pre-action notice is not to put hazards in the way of bringing litigation against a person. It is not to be equated with processes that are an integral part of the proceedings –initiating process. Rather, its purpose is to enable that person or agency to decide what to do in the matter.

The Court in the case of NNPC V EVWORI (2007) ALL FWLR (PT 369) Pg. 1324 @1345 held that a pre-action notice is a condition precedent that must be done in a particular case before one is entitled to institute an action.  It is not of the essence of such a cause of action but it has been made essential by law.  It is a condition precedent that must be complied with by an intending plaintiff before an action can be maintained against a defendant and it is to give the defendant breathing time so as to enable him to determine whether he should make preparation to the plaintiff.

It is pertinent to ascertain at this point what the nature of pre-action notice entails in our jurisprudence. The requirement of pre-action notice where this is prescribed by law is known to have one rationale. It is to acquaint the respondent before hand of the nature of the action anticipated and to give him enough time to consider or re-evaluate his position in the matter as to whether to 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 respondent is entitled to before he may be expected to defend that action – EZE v OKECHUKWU & ORS (2002) LPELR-1194 (SC). 

The Apex Court also came to this conclusion in the case of NTIERO V NIGERIAN PORTS AUTHORITY (2008) LPELR-2073 (SC) on the nature of pre-action notice when it held per Muhammad, J.S.C thus:

“A pre-action notice connotes some form of legal notifications or information required by law or implied 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 legal action against such a person.”

In the case of MEKAOWULU V UKWA WEST LOCAL GOVERNMENT COUNCIL (2018) LPELR-43807-CA held that the effect of non service of a pre-action notice where it is statutorily required is only an irregularity which however renders an action incompetent.  It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in their statement of defence.  If the defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the court could exercise its jurisdiction.

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The contention as to the relevance of pre-action notice is not novel in our legal system, some are of the school of thought that pre-action notice is merely a regulation of the right of access to the court and does not amount to infringement of Section 6(6)(b) of the 1999 CFRN. The court in the case of NNPC V TIJANI (2007) Vol. 35 WRN 17 @ 29-30, lines 40-20(CA) per Fabiyi J.C.A in determining whether pre-action notice constitute an infringement of right of access to court said

“There are arguments in some quarters that pre-action notice constitute an infringement of right of access to court as guaranteed in Section 6(6)(b) and 36 of the 1999 CFRN. I do not subscribe to such a view. Regulation of the right of access to the court abounds in rules of procedure. They are in order in my humble view. I see nothing unusual in provisions for pre-action notices. They do not impede constitutional right of access to court. They are meant to give room for the government or as officials to consider settlement of the matter. It does not remove the adjudicatory power of the court. Generally, omission to serve required notice in a deserving case would be fatal to the suit.”

The court in the case of AMADI v NNPC (Supra) in determining the attitude of the court to statutory provisions limiting access to court per Karibi-Whyte J.S.C held that

 “In my opinion a legitimate regulation of access to courts should not be directed at impeding ready access to the courts. There is no provision in the constitution for special privileges to any class or category of persons. Any statutory provision aimed at the protection of any class of persons from the exercise of the court of its constitutional jurisdiction to determine the right of another citizen seems to me inconsistent with the provisions of section 6(6) (b) of the constitution”.

The ratiocination of pre-action notice received judicial baptism from the court in the case of AMADI V NNPC (2000) 10 NWLR (pt 674) 76 held that the purpose of giving notice is to give the prospective defendant an opportunity to meet the prospective plaintiff and negotiate an possible out of court settlement. Another purpose 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 negotiate with the other party. By virtue of the front loading system obtainable in fundamental rights enforcement actions (wherein the respondent have access to all that the applicant wish to say in court), I believe the latter purpose for pre-action notice like a basket cannot hold water. The reason for my submission is that, the respondent in a fundamental right action has a reasonable time to file in their counter affidavit or opt for out of settlement which the court can grant. Order II Rule 6 of FREP Rules, 2009 provides -Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit. This is in spite of the fact that application for extension of time to file counter affidavit may be granted by the court.

In consideration of the decisions of the Court on the mandatory and constitutional nature of pre-action notice in different statutory provisions, I opine that there are some exceptions to it especially when fundamental right enforcement is involved:

  • Where the defendant waives it by not pleading it or by motion (preliminary objection)
  • Where irreparable damage would be done if the prospective plaintiff were to issue the notice and wait out the statutory period before accessing the court.
  • Where the requirement of a pre-action notice is an impediment to easy accessibility to court, it becomes unconstitutional. 30 days before a party files his motion on notice for enforcement of fundamental right is more than an impediment and equivalent to making hell a storage room for ice cream.
  • Also, because the constitution nor the FREP Rules, 2009 did not provide a precondition neither did it anticipate an additional formality on fundamental right cases since they are presumably matters of emergency and a requirement of pre-action notice by a statutory provision will be inconsistent with Section 1 (3) 1999 CFRN.

The procedure for the commencement of an action for the enforcement of fundamental rights in Nigeria is regulated by the Fundamental Right Enforcement Procedure Rules, 2009 (hereinafter referred to as FREP Rules, 2009) made pursuant to Section 46 (3) of the 1999 Constitution of the Federal Republic of  Nigeria (hereinafter referred to as the 1999 CFRN). Prior before the 2009 FREP Rules, access to justice and court especially in regards to fundamental right matters have experienced certain limitations and this discouraged some litigants from accessing the court when their rights is infracted upon or threatened to be infracted upon. Under the old FREP Rules, the leave of court was a compulsory requirement for the enforcement of the fundamental right actions which often take time before the court grants it, but under the instant 2009 FREP Rules, leave is not required, the issue of locus laid to rest and speedy trial granted because of the urgency and nature of the fundamental right action.

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The court in another case of ESSIEN V INYANG & ORS (2011) LPELR-CA/C/103/2008 held that fundamental rights is more significant than the rights under other statutes or laws, it goes to the root of the day to day existence of the citizen and corporate living of the citizens. – SEA TRUCKS NIG LTD V ANIGBORO (2001) 2 NWLR (PT 696) 159.

 It is trite that fundamental right enforcement procedure rules are special type of proceedings. They are in special class of their own unlike the ordinary cases that run through our courts daily, they are to be treated with due diligence and not to be handled anyhow. This is because the object of enforcement of fundamental right is to provide a simple and effective process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. – ADUMU V COMPTROLLER OF PRISONS, FEEDERAL PRISONS, ABA & ORS (2013) LPELR-CA/OW/292A/2011. 

In other to ascertain whether the absence of pre-action notice can be a limitation to fundamental right action, it is pertinent and necessary to ask, whether fundamental right matters are governed by the constitution? If yes, whether other statutory laws and rules of court can operate against the clear provisions of the constitution? I answer in the negative and strongly contend and submit that pre-action notice does not apply to fundamental right matters as the extant provision of law governing fundamental right cases is Section 46(1) of 1999 CFRN and not any other statutory provisions. 

The procedural aspect of the law is generally provided for in the various rules of our court applicable to each court. It is trite principle of our laws, which have received judicial blessing in plethora of cases that rules of court are meant to be obeyed. Howbeit, it is necessary to state that apart from rules of court, there are other statutes which establish corporations that also provide and regulate procedural requirement like the pre-action notice as seen in Section 16(1) FRSC ACT, 2007. 

In fundamental right matters, a pre-action notice is not required and one does not need to wait out 30 days before suing because irreparable damage would be done if the prospective applicants were to issue the notice and wait out the statutory period before accessing the court. So any act that requires pre-action notice before a fundamental right action is commenced is inconsistent with the constitution. To boot, fundamental right matters are expedient and do not tolerate any impediment to the access to justice, that the constitution which provide for the enforcement of fundamental rights particularly Section 46 did not make any pre-condition, save that one’s right has been contravened or likely to be contravened.

The supreme court in the case of OWNERS OF THE M V ARABELLA V NA/C (2008) 11 NWLR pt 1097 Pg 108 @ 208 held that rules of court are not mere rules but partake of the nature of subsidiary legislation, by virtue of Section 18 (1) Interpretation Act, it have the force of law.

Where conflict exists between the Fundamental Right Enforcement Procedure Rules 2009 and other statutory provisions, the latter shall prevail. However, based on the fact that, the provisions of FREP Rules 2009 is a subsidiary legislation made pursuant to Section 46(3) of 1999 CFRN and the case of ABIA STATE V ANYAIBE (1996) 3 NWLR (pt 439) 646 where the court held that the rules have the same force of law as the constitution itself and what this means is that the rules override any other enactment.

Despite the fact that statutory provisions provides for the service of a pre-action notice prior to commencing an action, by virtue of Section 1(3) of 1999 CFRN which provides that if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law shall to the extent of the inconsistency be void. It is apparent that the constitution is supreme and the FREP Rules, being a special provision of the constitution is superior to any other legislation, if the other legislation is in conflict with it.  It shall prevail and the other law shall be void up to the extent of the inconsistency.

 A pre-action notice is an additional formality and the chances are that failure to comply with this provision may impede the access of an intending litigant to the court in a fundamental right enforcement case. Naturally, it is a legitimate regulation to accessing the courts; however, it should not be utilized to impede ready access to the court. It was held in the case of NNPC v EVWORI (Supra) that where the requirement of a pre-action notice is an impediment to easy accessibility to court, it becomes unconstitutional.

In the case of OLISA AGBAKOBA V DIRECTORATE OF STATE SECURITY SERVICE (1994) 6 NWLR (pt 351) 475 @ 520 held that the end purpose of the FREP Rules 2009 is to ensure where an infringement of fundamental rights has been complained of or threatened, a speedy enforcement of such rights and simplification of procedure is employed to deal with such complaints.

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Section 46 (1) 1999 CFRN provides thus: “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”.

Order II Rules 1, 2, 3 and 5 of FREP Rule, 2009

  1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:

Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction.

  1. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
  2. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.
  3. Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application.

Based on the provisions, it is clear that the constitution nor the FREP Rules, 2009 did not provide a precondition neither did it anticipate an additional formality on fundamental right cases since they are presumably matters of emergency. In the case of IGWE v EZEANOCHIE (2010) 7 NWLR ( pt 1192) 61 held that a fundamental right is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself and it is a primary and prerequisite condition to a civilized existence.

Bearing in mind the provision of the constitution, the pre-condition for pre-action notice will not apply in fundamental right cases as it is inconsistent with the provisions of the constitution on the commencement of fundamental right actions. To shut out an applicant in a fundamental right action for failure to serve pre-action notice will lead to manifest injustice and the court will prevent it.

In conclusion, pre-action notice is a condition precedent to be served by the applicant to the respondent (if the respondent is a corporate entity) before commencing any civil action. The effect of not serving a pre-action notice is that it will rob the court of its jurisdiction. However,, to every general rule, there is an exception. Deducing from the argument above and litany of judicial authorities and constitutional provisions, it is barefaced that failure to serve pre-action notice in a fundamental right enforcement matters can never be a limitation nor rob the court of its jurisdiction.

For the purpose of emphasis, failure to serve pre-action notice will not be fatal in fundamental right enforcement matters thus:

  • Where the defendant waives it by not pleading it or by motion (preliminary objection)
  • Where irreparable damage would be done if the prospective plaintiff were to issue the notice and wait out the statutory period before accessing the court.
  • Where the requirement of a pre-action notice is an impediment to easy accessibility to court, it becomes unconstitutional. 30 days before a party files his motion on notice for enforcement of fundamental right is more than an impediment and equivalent to making hell a storage room for ice cream.
  • Also, because the constitution nor the FREP Rules, 2009 did not provide a precondition neither did it anticipate an additional formality on fundamental right cases since they are presumably matters of emergency and a requirement of pre-action notice by a statutory provision will be inconsistent with Section 1 (3) 1999 CFRN.

I submit that pre-action notice is not in tandem with the urgency required in fundamental rights enforcement matters to give 30 days’ pre-action notice meant for ordinary civil procedure rules to a respondent. By issuing a pre-action notice in a fundamental right enforcement matters will be a baleful act because of its urgency and it will cause more than irreparable damages to the applicant.  Therefore, fundamental right enforcement matters is an exception or case where pre-action notice will not be required because allowing such, will amount to impediment to easy accessibility to court.

Chidera Nwokeke is a graduate of Law and a member of Amnesty International and Fellow of Young African Leaders Initiative. He has keen interest in dispute resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at Nwokekechidera@gmail.com or 08120945787.

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