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PRINCIPLES FOR THE REQUIREMENT OF PRE-ACTION NOTICE TO CASES OF CONTRACT

 
Commercial Law
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 Anonymous
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Topic starter May 12, 2020 1:00 pm  
"The case of Amadi Vs NNPC (2000) FWLR (PT. 9) 1527, relied upon heavily by learned counsel for the appellant, was considered by this court in Ugwuanyi Vs Nicon Insurance Plc (Supra). His Lordship, Rhodes-Vivour, JSC had this to say:-

 

‘The issue before the court [in Amadi's case] was whether the pre-action notice served on the respondent, contained the information as provided by Section 11(2) of the NNPC Act and not whether the NNPC Act extended to suit of breach of contract of employment. This court set aside the decision of the Court of Appeal and ordered the case heard by another Judge of the Lagos High Court after finding that all the requirements of Section 11(2) of the NNPC Act had been met by the plaintiff. If ever there was a case most irrelevant to the issue under consideration, Amadi Vs NNPC supra is that case. The issue in this case, once again, is whether a plaintiff who sues on a specific contract (a contract of employment) needs to serve pre-action notice on the defendant, while in Amadis case, a pre-action notice was served, but did the pre-action notice contain the required information as provided by Section 11(2) of the NNPC Act. That was the issue.’

 

In overturning the concurrent findings of the two lower courts, His Lordship held at page 617 B - C of the report:-

 

‘Concurrent findings of the courts below are that where a plaintiff's claim is for a specific contract or whatever claim, he must serve on the defendant a pre-action notice, as provided by Section 26 of the NICON Insurance Act, before the court can have jurisdiction to hear his suit. This finding, confirmed by the Court of Appeal is perverse in the light of the reasoning in N.P.A. Vs Construzioni Generali supra which states clearly that Section 97 of the Ports Act and similar enactments are not intended by the legislature to apply to specific contracts.’

 

The case of N.P.A Vs Lotus Plastics Ltd (Supra) was cited with approval."
 
 
PER K. M. O. KEKERE-EKUN, J.S.C.IN WARRI REFINING & PETROCHEMICAL CO LTD VS GECMEP NIGERIA LIMITED  SUIT NO:SC. 769/2017


LEGALPEDIA ELECTRONIC CITATION:(2020) Legalpedia (SC) 11195
 

 


   
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 Anonymous
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Topic starter May 12, 2020 1:00 pm  

Summary Of Fact:

By its Writ of Summons and statement of claim, the Respondent as Plaintiff, sought the following reliefs against the Appellant; an order of the Honourable court declaring the Defendants letter rejecting the Heptane Chemical supplied to it by the Plaintiff as null and void and of no effect; the sum of #20, 278, 065. 00 being the debt owed to the Plaintiff by the Defendant for the supply of Heptane Chemicals; 21% interest accruing on the debt from 13th December 2013, when the debt was due for payment to the date of payment of the debt; the sum of ₦450, 000.00 being special damages arising from transportation and hotel bills expended by the Plaintiffs in nine (9) trips to the Defendants office over the delayed payment; the sum of ₦50 million as general damages for breach of contract.

The Appellant filed a Statement of Defence and filed a motion seeking an order setting down for hearing the points of law raised in the Statement of Defence.

The parties filed and exchanged written addresses in respect of the points of law, which were accordingly set down for hearing.

The learned trial Judge held that since there is no provision for pre-action notice in the contract between the Plaintiff/Respondent and the Defendant/Applicant, the court will assume jurisdiction over the matter.

The Appellant was dissatisfied with the decision and appealed to the lower court, which appeal was dismissed.

The Appellant is still dissatisfied and has further appealed to this court.

The Respondent raised a preliminary objection to the hearing of the appeal contending that the appeal being interlocutory was filed outside the period prescribed by Section 27(2) of the Supreme Court Act, Cap 515 LFN 2004 and no application for extension of time to seek leave appeal was made, that grounds 1, 2 and 3 of the notice of appeal involve questions of mixed law and fact, for which leave ought to have been sought and obtained and that issues A and C formulated in the Appellants brief are distilled from incompetent grounds and therefore incompetent.

 


   
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