You
We sued Rivergate Water Corporation for breach of a supply contract. No pre-action notice was served. They filed a defence, took part for eight months, and have now filed a preliminary objection. Can we defeat it?
Barilex
- Objective
- Defeat the preliminary objection.
- Issue for determination
- Whether failure to serve a statutory pre-action notice defeats the suit where the defendant has filed a defence and taken steps.
- Plan
- Research · Reason · Challenge · Verify · Draft
Barilex · working
<>search_judgments“pre-action notice” + waiver41 found
<>filterCourt of Appeal and above17 kept
<>trace_authoritiescited within, depth 2+6 found
Adeyemi v. Coastal Water CorporationSC · 2009Notice is procedural, and it can be waived.
Musa v. Northern Grid AuthorityCA · 2016An objection raised after steps were taken fails.
Danjuma v. Northgate Water BoardCA · 2006Notice is a jurisdictional bar. Against us.
Rivergate Water Corporation Law, s. 31StatuteOne month’s written notice before any suit.
Barilex · governing principle
A statutory pre-action notice protects the defendant. Missing it makes the suit irregular, but the defendant can waive that protection, and one who defends on the merits without objecting has waived it.
“The requirement of notice is a shield given to the defendant. He may raise it, or he may lay it down; but having laid it down and fought on the merits, he cannot pick it up again.”Adeyemi v. Coastal Water Corporation · SC · lead judgment · ratio
- Applied to you
- Rivergate filed a defence and took part for eight months before it objected.
Barilex · against ourselves
- Against us
- Danjuma v. Northgate Water Board (CA, 2006) treats notice as a jurisdictional bar that can’t be waived.
- Their best point
- Section 31 says no suit “shall be commenced” without notice. Those are mandatory words.
- Our answer
- The Supreme Court overruled Danjuma in Adeyemi (2009). Mandatory wording doesn’t stop a party waiving a protection that exists for its own benefit.
- Risk
- If Rivergate pleaded the missing notice in its statement of defence, there was no waiver. Check the pleading before you file.
| Authority | Exists | Citation | Supports | Context | Status |
| Adeyemi v. Coastal Water Corp. SC 2009 · ratio · followed 4× | ✓passed | ✓passed | ✓passed | ✓passed | ✓passed |
| Musa v. Northern Grid Authority CA 2016 · page corrected, 88 → 98 | ✓passed | ↻corrected | ✓passed | ✓passed | ✓passed |
| Danjuma v. Northgate Water Board CA 2006 · overruled, cited only to distinguish | ✓passed | ✓passed | ✓passed | ✓passed | ✕failed |
| Bello v. Lakeside LGC CA 2014 · passage is obiter, removed | ✓passed | ✓passed | ✕failed | ✕failed | –not run |
| Eze v. Harbour Ports Authority 2012 · no source found, removed | ✕failed | –not run | –not run | –not run | –not run |
12 checked9 verified1 corrected2 removed
Written address in opposition to the notice of preliminary objection
Issue for determination: whether failure to serve a statutory pre-action notice defeats this suit, where the Defendant has filed a defence and taken steps.
3.1 Pre-action notice is a procedural protection that exists for the Defendant’s benefit, and the Defendant may waive it.1 Having filed a defence and taken part in these proceedings for eight months, the Defendant has done exactly that.2
¹ Adeyemi v. Coastal Water Corporation (2009) 12 NWLR (Pt. 1155) 214 at 231 · verified
² Musa v. Northern Grid Authority (2016) 7 NWLR (Pt. 1512) 98 · verified · page corrected
4 pages · 10 authorities · 0 unconfirmedReady for your review