Pre-Action Notice

A pre-action notice connotes some
form of legal notification or information required by law or imparted 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 any legal action against such a person. A good example is in section 110(2) of the Ports Act (Cap 361) laws of the federation (1990). It provides as follows:
“No suit shall be commenced against the authority until one month at least after written notice of intention to commence the same shall have been served upon the authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff in his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”
Note that the requirement of pre-action notice does not amount to denial of fair hearing. Infact as a general rule of law, where it is provided for, like under section 110(2) of the Ports Act, it must be complied with as a condition precedent for the institution of a valid and effective suit. If one is required to give such notice and did not, it amounts to an irregularity in the exercise of jurisdiction and the court is robbed of its jurisdiction to entertain the matter. In other words, non-service of a pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the preconditions. However, the absence of jurisdiction occasioned by the absence of a pre-action notice does not amount to total lack of jurisdiction. It is an irregularity that can be waived (by failing to plead the irregularity) and the court’s jurisdiction gets reinstated.
The major purpose of a pre-action notice is to promote and give out of court settlement a preference. It is issued in order to give the prospective defendant an opportunity and breathy time to meet the prospective plaintiff and to determine whether he should make reparation to him or negotiate any possible out of court settlement. Pre-action notice has been upheld as just and consistent with our civil procedure wherever statutes prescribe that such should be given. The courts have also made pronouncements declaring pre-action notices and statues requiring the fulfillment of a statutory provision before an action is commenced constitutional. I therefore advise that pre-action notice should be given the attention required when necessary.

Nkechi Bright Ewere