A Critical Analysis of the Doctrine of Pre Action Notice and Its Effect on Fundamental Rights Actions in Nigeria
Introduction
The doctrine of pre‑action notice is well established within the Nigerian judicial system. However, the rationale behind its emergence and continued acceptance requires careful scrutiny to ensure that it serves its intended purpose without exceeding permissible bounds. Where pre‑action notice provisions are applied without adequate checks and balances, they risk undermining and infringing upon the fundamental rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Pre‑action notice is essentially procedural in nature. It is recognized under various Rules of Court, ranging from Magistrates’ Courts to the Supreme Court, reflecting the intention of the draftsmen that procedural requirements be complied with by all litigants within the court’s jurisdiction. Beyond the Rules of Court, several statutes establishing public corporations, institutions, and agencies also prescribe their own procedural requirements, many of which impose pre‑action notice obligations and which the court has enforce same in many decided authorities. See the case of N.N.P.C. v. Tijani (2006) 17 NWLR (Pt. 1007) 29.
It is a settled principle of law that where a statute prescribes a particular mode for the performance of an act, that procedure must be strictly followed. Nonetheless, the continued relevance and constitutional justification of pre‑action notices especially in the context of fundamental rights enforcement have become increasingly questionable. It raises concerns as well as poses threats to the works and possible justice that the Nigerian Judicial system had always sought to protect and uphold. A careful examination of the applicable procedural rules shows that pre-action notices lack any compelling justification, and their continued constitutional validation serves little or no meaningful practical purpose but rather often occasions injustice.
Pre‑Action Notice as a Procedural Requirement
The original justification for pre‑action notice is to notify the prospective defendant of an impending action, thereby allowing amicable settlement and preventing undue surprise. In principle, this objective is not objectionable. However, the manner in which many statutory pre‑action notice provisions operate, particularly those prescribing strict timelines, failure of which permanently bars an action, raises serious constitutional concerns.
Where public bodies impose rigid time limits for the issuance of pre‑action notices and attach fatal consequences to non‑compliance, such provisions undermine the fundamental objectives of justice and contravenes the spirit and intent of Sections 6(6)(b) and 45 of the Constitution. From a holistic examination of the doctrine, it becomes evident that the reasons commonly advanced in support of pre‑action notices are largely dispensable. A simple letter of demand from an intending claimant or counsel should ordinarily suffice to alert a defendant and open the door for possible redress, without imposing technical hurdles that obstruct access to court.
In practice, pre‑action notices are frequently exploited by defendants as a procedural shield to delay or defeat claims without addressing their substantive merits. This places undue hardship on claimants with valid and legitimate grievances, including those seeking the enforcement of fundamental rights. While it could be said that the court is the last hope of the common man, and the same court is part of a larger platform being the Justice system which should be accessible to all, it is without doubt that in reality, an aggrieved individual who intends to take this route is met with everything short of justice where they do not first explore the procedural requirement of the service of the pre-action notice on the prospective defendant. The reality is simply that litigants are frequently denied substantive justice for failure to comply with technical pre‑action notice requirements.
The Front‑Loading System and the Redundancy of Pre‑Action Notices
The continued insistence on pre‑action notices is particularly difficult to justify in light of Nigeria’s modern procedural framework. In Lagos State, the front‑loading system requires parties commencing actions by writ of summons to file and serve comprehensive processes at the outset, including statements of claim, witness lists, written statements on oath, and documentary evidence. This system ensures that defendants are fully apprised of the case against them from inception.
Similarly, in Abuja, counsel-initiated actions must be accompanied by a certificate of pre‑action counselling, confirming that parties have been advised on the merits of their case. Counsel may even be held personally liable for costs where an action is found to be frivolous. These procedural safeguards are designed to discourage frivolous litigation, promote alternative dispute resolution, and ensure the expeditious determination of disputes.
Against this background, pre‑action notices serve little practical purpose. Unlike front‑loading, which facilitates access to justice, pre‑action notices often operate to restrict it. Moreover, existing procedural rules already afford defendants adequate time to respond through statements of defence and applications for extension of time, which courts routinely grant.
Where a defendant decided to be mute against the failure of the claimant to serve a pre-action notice, then the defendant has slept on his rights and thus it has been waived and the court will not suo moto declare the suit incompetent before it. See the case of Reg’d. Trustees, A.S.P. & M.D.A. V. John (2020) 17 NWLR (Pt. 1753) 189 it was held that:
The effect of non-service of a pre-action notice where it is required is only an irregularity which renders an action incompetent, but the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. In this case, the appellant’s failure to raise the issue of non-service of a pre-action notice as a ground of their preliminary objection amounted to a waiver of the irregularity.
Also, negotiation and settlement are also not foreclosed once an action has commenced. Settlements reached while matters are pending before the court may be reduced into consent judgments, thereby minimizing the risk of parties resiling from agreed positions. Consequently, the argument that pre‑action notices are necessary to prevent surprise or promote settlement is largely unconvincing.
Effect of Pre‑Action Notice on Fundamental Rights Actions
Judicial powers in Nigeria are vested in the courts by Section 6(6) of the Constitution and extend to all matters involving the determination of civil rights and obligations between persons, government, and authorities. A corollary of this power is the constitutional duty of the courts to protect fundamental rights and prevent their infringement. Central to this duty is the right to fair hearing within a reasonable time under Section 36(1), which necessarily encompasses the right of access to court.
While courts are only seized of disputes brought before them in accordance with due process, the imposition of pre‑action notice as a condition precedent to fundamental rights enforcement raises the critical question: to what end? The fundamental rights guaranteed under Chapter IV of the Constitution are intended to be practical, effective, and enforceable. Where individuals neither experience nor perceive these rights as capable of protection due to procedural obstacles, the very purpose of their constitutional recognition is defeated.
Notably, although the Constitution permits certain derogations from fundamental rights, none requires compliance with pre‑action notice provisions as a condition for enforcement. Pre‑action notice provisions are therefore best understood as statutory privileges; special advantages granted primarily to public bodies. As privileges, they ought to be waivable, particularly where their enforcement would obstruct the vindication of constitutional rights.
The discriminatory nature of pre‑action notice provisions has generated sustained criticism, as they institutionalize preferential treatment in favour of defendants, usually government agencies, to the detriment of private individuals. This concern is heightened by the reality that such agencies are effectively subsumed under the executive arm of government, raising questions about judicial independence and impartiality in line with Section 36(1) of the Constitution.
The Supreme Court has acknowledged the waivable nature of pre‑action notices. In Mobil Production (Nig.) Unltd v. Lagos State Environmental Protection Agency (18 NWLR (Pt. 798) 1 at 168), the Court held that the right to pre‑action notice does not fall within the category of rights that cannot be waived, noting that the Constitution grants no special privileges to any class of persons. Similarly, in Nigeria Ports Authority v. Construzioni Generali Fasura Cogefar (1974) 9 NSCC 623, it was evident that Corporations and agencies uses the benefit of pre-action notice requirement only as a shield and never as a sword, but for how long?
Nigerian courts have repeatedly emphasized that fundamental rights should not be defeated by technicalities. Consequently, pre‑action notice requirements have been held to be inapplicable or waivable in fundamental rights proceedings where their enforcement would impede the right to fair hearing under Section 36 or access to court under Section 46 of the Constitution.
Conclusion
While pre‑action notices may serve legitimate purposes in ordinary civil claims, their rigid application to fundamental rights actions poses a serious threat to constitutional guarantees. Procedural rules must remain subordinate to substantive justice, particularly where constitutional rights are at stake. The judicial approach should therefore consistently prioritize the protection and enforcement of fundamental rights over technical procedural requirements, ensuring that access to justice remains real, effective, and meaningful.