CAN THE REQUIREMENT OF PRE-ACTION NOTICE BE WAIVED?

The Judicial power of the courts in Nigeria is conferred by section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that the judicial power shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. It is therefore the duty of the court to guard the constitutional rights of its citizens and ward off any infringement of those rights by the state, A corollary of such rights is the right of fair hearing within a reasonable time under section 36 (1) of the said Constitution which necéssarily involves the right of access to court. However, the courts do not automatically become seized of every dispute except it is brought by the due process of law. Following the due process entails complying with conditions precedent’ One of such a condition precedent is the giving of pre-action notices where required by law. This article examines the question whether the requirement of giving pre-action notice before instituting an action can be waived. This has become necessary because the Supreme Court in Katsina Local Authority v. Alhaji Makudawa’ and Mobil Producing (Nig.) Unltd v. LASEPA? adopted the position that a pre-action notice as a jurisdictional fact or issue could be waived. However, in the subsequent and more recent decision of Nigercare Development Co Lid v. Adamawa State Government,‘ the Supreme Court held that an issue of pre-action notice being a jurisdictional issue can be raised at any stage of the proceeding even for the first time on appeal. This decision is in conflict with the courts earlier decisions and calls into questions the authoritativeness of the earlier decisions.” This article would examine the decisions of the Supreme Court