The meaning and nature of a Pre-action notice.
The supreme court of Nigeria in the case of NIGERIAN PORTS PLC V. S.E.S LTD[1] 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.
As to the form of a pre-action notice, in NIGERIAN PORTS PLC V. NTIERO[2] the court noted:
ย A pre-action notice is a letter usually given by the intending plaintiffโs 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.ย
The effect of non-compliance of service of pre-action notice
In the case ofย NICON INSURANCE PLC v. ANAGBA VENTURES LTD,[3]the Court of Appeal explained the purpose of pre-action notice and the effect of non-compliance with the requirement of a pre-action notice when it held that: โ
โThe rationale behind pre-action notice is to enable the defendant know in advance the expected action and if possible, find an amicable means of settlement without recourse to litigation. It also gives the defendant an opportunity to adequately prepare its defence. See the cases of ABUJA MUNICIPAL AREA COUNCIL v C.N. OKOLI TRANSPORT CO. LTD (2009) LPELR โ 3579 (CA); EZE v OKECHUKWU & ORS (2002) LPELR โ 1194 (SC). So therefore where an enabling statute provides for pre-action notice, unless it is waived by the party entitled thereto, it must be complied with before an action can be said to have been properly instituted. Failure to so comply renders the action ineffective and liable to be struck out. In effect, the jurisdiction of the Court is put on hold pending compliance.โ
Service of Pre-action notice on NSCDC
Section 20 (3) of the NATIONAL SECURITY AND CIVIL DEFENCE CORPS (NSCDC) Act 2003 (as amended) provides:
ย No suit shall be commenced against a member or the Board or the Commander-General or any other officer or employee of the Corps before the expiration of a period of one month after written notice of intention to commence the suit shall have been served on the Corps by the intending plaintiff or his agent.
The law is trite that where words in a statute are clear and unambiguous the court must give the words their plain and ordinary meaning.[4] The above provision is clear and unambiguous. The implication of the section is that no suit can be commenced against a Member, Board, or Commandant General or any other officer or employee of the Corps, before the expiration of one month of a pre-action notice.
Compared with the provisions of section 17 of the Companies and Allied Matters Act (2020) which provides:
A suit shall not be commenced against the Commission before the expiration of 30 days after a written notice of intention to commence the suit is served upon the Commission by the intending plaintiff or his agent.
(2) The notice referred to in subsection (1) shall clearly state theโ (a) cause of action; (b) particulars of the claim ; (c) name and place of abode of the intending plaintiff ; and (d) relief sought.
The provision is to the effect that an action against the Corporate Affairs Commission (โthe Commissionโ) shall not be commenced before the expiration of 30 days after a written notice of intention to commence the suit is served upon the Commission by the intending plaintiff. The notice to be served on the Commission is to clearly state the cause of action, particulars of the claim, name, and place of abode of the intending plaintiff, and the relief sought.
Similarly, section 308 of the Petroleum Industry Act (2021) provides:
(1) A suit shall not be commenced against the Commission or Authority or any officer of the Commission or Authority, before the expiration of a period of one month after a written notice of the intention to commence the suit has been served on the Commission or the Authority.
(2) The notice referred to in subsection (1) shall state the cause of action, the particulars of claim, the name and address of the claimant and the reliefs sought.
The above section prescribes a monthโs notice period to be served on the Nigerian Upstream Regulatory Commission (NUPRC), Nigerian Midstream and Downstream Regulatory Authority (NMDRA), and any officer in the employment of either the NUPRC and NMDRA before filing an action against any or all of them in court.
Conclusion
Where a Claimant intends to sue an Organisation/Corporation, the Claimant must first check if the Organisation/Corporation requires a pre-action notice. If it does, secondly, is the pre-action notice required where the Organisation/Corporation itself is sued; or where its members are sued; or where either both is sued. The NATIONAL SECURITY AND CIVIL DEFENCE CORPS (NSCDC) Act 2003 is clear that pre-action notice is only required where its Member, Board, Commandant General or employee or other officer is sued not where the Corps as a whole is sued.
[1] (2016)17 NWLR (PT 1541) P.191 at 212, Paras A-C.
[2] (1998) 6 NWLR (PT 555) 640 at 650-651 Paras H-B.
[3] (2018) LPELR-46672(CA); ย Ntiero v. NPAย (2008) 10 NWLR (Pt.1094) 129; AKAHALL & SONS LTD v. NDIC (2017) LPELR-41984(SC)
[4] Hon Commisioner For Education v Amadi (2013) LPELR โ 19907 (SC) 31 paragraph A โ A, Per Muhammed JSC; Atungwu & Anor v Ochekwu (2013) LPELR โ 2093 (SC).