PROCEDURAL DEFECTS THAT CAN HAVE YOUR CASE THROWN OUT OF COURT

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Source. Internet

How does one commence proceedings against another in the court of law? Have you ever stopped to ask? Oh yeah, everyone easily threatens, I will sue you! I will sue you! But how do you commence the suing process? Especially against government corporations and agencies. Let’s talk about that today. Note that proceedings here refer to civil proceedings. Here, you must start by way of a pre action notice.

A pre action notice is a notice, usually in   writing, given by the prospective plaintiff to the government or statutory corporation to be sued, informing the latter of the prospective plaintiff’s intention to commence legal action against the corporation NNPC v UDENZE (2016) All FWLR pt 817
In NNPC v Udenze, the respondent commenced an action in the Federal High Court claiming ownership of the land in Abia State relying on traditional evidence. He claimed that the appellants trespassed thereon, destroying the economic trees and fruits thereon and was in the process of building a mega station thereon, without the land being acquired by the State Government or compensation paid therefore. He prayed the court for a declaration that the conduct of the appellant in taking possession of the land compulsorily without payment of any compensation is an infringement of his rights under S44(1) of the Constitution of the Federal Republic of Nigeria, 1999, and general damages.

Inter alia, the appellant challenged the jurisdiction of the court on the ground that the respondent failed to give the mandatory statutory notice. It was dismissed by the trial court but the appellant appealed. At the appeal court, it was held that a pre action notice is a procedural defence open to a government corporation and agencies whenever they sued. The reasons for the necessity to serve pre-trial notices on statutory corporations in Nigeria are that, it gives the defendant the opportunity to seek amicable resolution of the festering dispute and allows the defendant to afford itself sufficient time to prepare its defense. KATSINA LOCAL AUTHORITY v MAKUDAWA.
Another thing to note is that, a pre action notice cannot predate the cause of action as was held in Onyebueke v Asoegwu & Anor (2007) All FWLR pt (358) 1176 at 1184 CA, where the court held that the requirement of a pre-action notice is to appraise the defendant before hand of the nature of the action contemplated and to give enough time to consider or reconsider his position in the matter as to whether to compromise or contest it.  Chief John Eze v Dr C.I Okechukwu (2002) 12 SCNJ 258 at 262. The giving of a pre action notice has nothing to do with a cause of action. It is not a substantive element but a procedural requirement albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow.

Undoubtedly, a pre action notice cannot predate the cause of action. But a cause of action is the bundle or aggregate of facts which the law recognizes as giving the plaintiff substantive right to make the claim in respect of the relief or remedy being sought. A plaintiff can therefore not bring a pre action notice in apprehension or contemplation of a potential wrong, no. the wrong must have been manifestly and undoubtedly committed before a pre action notice is brought. Note that a pre action notice is statutory and the refusal to issue same may have your case thrown out of court. It is usually contained in the statutes of the concerned corporation or government agency. Here’s an example

S28(2) of Edict No 10 of 1976 i.e Anambra State Housing Development Corporation Edict, 1976 which states as follows
“No suit shall be commenced against the corporation until one month at least after written notice of intention to commence the same shall have been served upon the corporation by the intending plaintiff or his agent and such notice shall clearly state the cause of action, the particulars of the claim, the name and place or abode of the intending plaintiff and the relief which he claims”

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