THE LAW ON PRE-ACTION NOTICE: A LOOK AT ITS CONSTITUTIONALITY AND EXCEPTIONS

Abstract

Pre-action notice which is a creature of some statutory laws in Nigeria both at the federal and state levels, is a form of notice issued by an aggrieved person which is expected to be formally served on the other party before the commencement of a valid action. This work aimed at taking a second look at this legal phenomenon to ascertain its place vis-a-vis the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is not in doubt that there have been a number of decisions on the pre-action notice phenomenon in the past, but it appears that the decided cases on pre-action notice have not taken into account the provision of section 4 (8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which explicitly provides that both the National Assembly and the State Houses of Assembly are not to make laws that will oust the jurisdiction of a court of law. The study argues that the import of a pre-action notice by its very nature temporarily suspends the jurisdiction of a court to entertain a suit that is ordinarily within its jurisdiction. The study examined the exceptions that could ignore the express provision that prescribes a pre-action notice prior to a civil suit. These exceptions could be found where the civil action to be brought is on a contract or where the action is a fundamental right suit, amendment or cases of judicial review. The researcher adopted the doctrinal research methodology and utilized both the primary and secondary sources of data including statutes, journals, textbooks, newspaper publications and internet data and materials. The study found that pre-action notice limits the right of a citizen to approach the court as soon as injury has arisen against the government or statutory body. The study recommended that efforts should be made to remove from our legislations, all such unconstitutional provisions on pre-action prior to a suit.