Is Service of Pre-Action Notice a Contradiction to the Constitutional Right of Access to Court?

CASE TITLE: ORIENTAL ENERGY RESOURCES LTD v. NICON INSURANCE PLC (2024) LPELR-61988(CA)

JUDGMENT DATE: 25TH MARCH, 2024

JUSTICES: MUHAMMED LAWAL SHUAIBU
HANNATU AZUMI LAJA-BALOGUN
JANE ESIENANWAN INYANG

DIVISION: ABUJA

PRACTICE AREA: CIVIL PROCEDURE

FACTS:

This appeal borders on service of Pre-Action Notice on Government Agencies.

This is an appeal against the judgment of the Federal High Court, Abuja Judicial Division, in Suit No. FHC/ABJ/CS/651/2007, delivered on 29 April 2015.

By a writ of summons, the Appellant who was the (plaintiff) commenced a civil suit against the Respondent as Defendant claiming the sum of US $10,000,000.00 (Ten Million United States Dollars Only) inclusive of other sundry reliefs.

​Upon being served, the Respondent filed a statement of defence together with a preliminary objection challenging the jurisdiction of the trial Court on the following grounds: –

(a) No pre-action notice was served on the defendant by the plaintiff before the institution of the case.

(b) The action is statute-barred because it was not instituted within a period of three months from the time the cause of action arose. Or, in the alternative, the action is statute-barred because it was not instituted within a period of twelve months from the time the cause of action arose.

​After taking the argument of counsel, the learned trial Judge upheld the objection and struck out the suit.

Miffed by the decision of the trial Court, the Appellant appealed.

ISSUE(S) FOR DETERMINATION

The Court determined the appeal on the sole issue thus:

Whether applying Section 26(1) and (2) of the NICON Act to the Respondent, a private company, in view of Section 6 (6) (b) of the Constitution does not unjustifiably restrict the Appellant’s right of access to Court and therefore unconstitutional?

COUNSEL SUBMISSIONS:

The Appellant’s contention is that had the trial Court critically examined the writ of summons and the statement of claim, including Exhibits P1, P2, P6, P7, P8, P9, P13, and P15, it would have come to the irresistible conclusion that the Respondent, NICON Insurance Plc, is not a statutory corporation but rather a public liability company registered under the Companies and Allied Matters Act. Thus, the requirement of service of pre-action notice and/or commencing an action against the Respondent within twelve (12) months from the date of action does not arise.

​Counsel concedes that NICON Insurance Corporation being a statutory creature still exist because the Act establishing it has not been repealed. He was however quick to contend that the action being against NICON Insurance Plc which was incorporated under CAMA requires no pre-action notice or taking out a writ of summons within twelve calendar months upon the accrual of the cause of action. He thus submits that upon strict construction of Section 6 (6) (b) of the 1999 Constitution, applying Section 26 (1) and (2) of the NICON Act unjustifiably restricts the Appellant’s right of access to Court and hence unconstitutional. In aid, counsel relied on the decision in the cases of Abuah v. Okoji (2015) 165 NWLR (Pt 1484) 147 at 170 and Marwa Vs Nyako (2012) 6 NWLR (Pt 1296) 351 at 352 to emphasize the sacrosanct nature of the said Section 6 (6) (b) of the Constitution aforesaid and that any procedural step aimed at curtailing the right of access to Court is an affront to the Constitution.

Learned counsel for the Respondent submits that the trial Court preemptory having settled the issue on the status of the Respondent and the applicability of the National Insurance Corporation of Nigeria Act, 1969 to the Respondent, that findings, which are not appealed against, remain subsisting and binding. He referred to Saleh v. Abah (2011) 12 NWLR (Pt 1578) 100 at 134, Dabup vs. Kolo (1993) 9 NWLR (Pt 317) 254 at 269, Braithwaite v. Dalhatu (2016) 13 NWLR (Pt 1528) 32 and hosts of other cases to the effect that where a party has not appealed against a finding of the trial Court or Court of Appeal, he cannot be heard to question that finding on appeal.

On the Appellant’s complaint against the constitutionality of Section 26 (1) and (2) of the NICON Act, counsel submits that the requirement to serve pre-action notice does not conflict with the provisions of Section 6(6)(b) or 36 of the Constitution and therefore it does not deny the Appellant the right of access to Court. He referred to NNPC v. Fawehinmi (1998) 7 NWLR (Pt 559) 602 at 613, Capt. Amadi v. NNPC (2000) 10 NWLR (Pt 674) 76 at 113 and Ugwuanyi v. NICON Insurance Plc (supra).

​Finally, on the Appellant’s allusion that had the apex Court considered the provisions of Section 6(2) of the Interpretation Act in Ugwuanyi v. NICON Insurance Plc, it would have concluded that the Act had expired or ceased, counsel submits that the Appellant cannot set out to make a different case on appeal and thus must be consistent with the case he made out at the trial Court. He referred to F.B.N. Plc v. Akparabong Comm. Bank (2006) 1 NWLR (Pt 962) 438 at 475 to the effect that parties are bound by the case they put forward to the Court.

DECISION/HELD:

In conclusion, the appeal was dismissed.

RATIO:

ACTION – CONDITION PRECEDENT: Whether condition precedent is a contradiction to the constitutional right of access to Court

“Now, having arrived at the conclusion that pre-action notice applied to the suit giving rise to this appeal, the next germane issue is the constitutionality or otherwise of the pre-action notice. Pre-action notices are recognized procedural provisions. They give a defendant time to enable the defendant determine whether or not to make reparation to the plaintiff. Learned counsel for the Appellant vehemently argued against the Constitutionality of pre-action notice, insisting that it deprive the Appellant of his right of access to Court. In the famous decision of Amadi vs NNPC also reported in (2000) 6 SC (Pt 1) 66 at 95, the Supreme Court while considering a provision of Section 11(2) of the NNPC ACT, 1977 which also prescribed the conditions for commencing actions against the corporation has held that regulations of right of access to Court are bound in the rules of procedure and are legitimate. Thus, a pre-action notice is not inconsistent with Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Similarly, in Ugwuanyi Vs NICON Insurance Plc (supra), the Supreme Court inter alia held that the use of “shall” in the provisions of Section 26 (2) of the National Insurance Corporation of Nigeria Act which is akin to Section 51 (1) of Cap. N. 53 of the Laws of the Federation of Nigeria, 2004 shows that it is compulsory and imperative that a plaintiff must serve a pre-action notice before commencing any suit against the corporation. And it is not unconstitutional and does not constitute a denial of the right of access of the Court.” Per SHUAIBU, J.C.A.

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