Access to Justice and Fair Hearing: An Evaluation of Pre-Action Notice in Nigerian Jurisprudence

Date01 February 2012
Published date01 February 2012
AuthorPontian N. Okoli

It is apparent that there have been persistent efforts throughout the course of history to codify the administration of justice. Even though there is a general consensus that natural justice is an important aspect of the justice system, such a concept cannot find automatic application in practical terms. In other words, concepts of justice have only a persuasive influence rather than peremptory force if they are not codified in the justice system. Many jurisdictions practise the codification system. That is, laws cannot be enforced unless they are codified. This is the position in the Nigerian justice system.

It is within this context that one may appreciate the apparatus of pre-action notice in Nigerian civil procedure. The procedural aspect of the law is generally provided in the various Rules of Court, which are applied from the magistrates' courts to the Supreme Court. Rules of Court are meant to be obeyed. Apart from Rules of Court, there are other statutes which provide for procedure. An example is the Sheriffs and Civil Processes Act. Apart from Rules of Court or statutes which are specifically enacted to regulate procedure, other statutes which establish corporations, for example, also stipulate procedural requirements. A good number of pre-action notices can be found in such statutes. The law is that where a statute has provided for how something should be done, such a provision must be complied with.

An evaluation of the justifications presented for pre-action notice is central to this work. Pre-action notices must be placed in perspective. Access to justice is anchored in statutory provisions. Is pre-action notice a constitutional contradiction? Do pre-action notices thrive on unjustifiable technicalities? Do modern legal developments like the front-loading procedure obviate the rationale behind pre-action notice? It is indeed a concern that the applicability of pre-action notice is not in consonance with the spirit of the rule of law. It is also apposite to note that a deep-rooted analysis of relevant procedural law does not in fact guarantee pre-action notice any justification. This is apart from the fact that certain judicial decisions offer themselves as springboards against pre-action notice.

This article brings to the fore the fact that most judicial decisions that validate pre-action notice hardly do more than surrender to the doctrine of stare decisis or are not disposed to upset the state of judicial precedent. As a result of this apparently presumptive mindset, it is usually the case that such judicial decisions which validate pre-action notice do not contain profound analyses concerning access to the courts and provisions on fair hearing. The inadequacies and excesses of pre-action notice as currently applicable in Nigerian jurisprudence are distilled in this article. The need for a fundamental paradigm shift on the subject matter as far as procedural law is concerned is necessary.


The conceptualisation of access to the courts and justice is unfortunately somewhat contingent on the prevailing jurisprudential reality of the area in question. For example, is it law according to justice or justice according to the law? In any case, it is noted that even if law according to justice appears too idealistic or even outside the letter of the law, it has to be basically and fairly conceded that all municipal laws should be measured against the basic law: the country's Constitution.

Access to the courts and access to justice are apparently used quite interchangeably, partly because it is perhaps presumed that justice ought to be obtained in the courts. Access to the courts means ‘an opportunity or ability to enter, approach, pass to and from, or communicate with the courts’.1

B. A. Garner (ed.), Black's Law Dictionary, 7th edn, West Group (1999), p. 13.

It is beyond question that the right to have access to the courts is crucial to the dispensation of justice. For if a person cannot have access to the courts, how will such a person be heard? In Attorney General, Kaduna State v Hassan2

(1985) 2 NWLR (Part 8), 552 SC.

the Supreme Court held (per Oputa JSC) that there is perhaps no question more fundamental in the whole process of adjudication than that of access to justice–access to the courts. Indeed, a person who cannot even reach the courts cannot talk of justice from those courts

For now, it is certain that under Nigerian constitutional arrangements, justice is not a privilege but a right. In Nigeria, this is beyond jurisprudential disputation. Access to the courts and justice is indeed an inalienable right enshrined in the Nigerian Constitution and is specifically entrenched in the fourth chapter of the Constitution which provides for fundamental rights.


The Nigerian Constitution makes clear provisions bordering on access to justice. Section 6(6)(b) of the Constitution3

Constitution of the Federal Republic of Nigeria (CFRN) 1999.

provides that the judicial powers of the courts 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 obligation of that person. section 36 of the Constitution,4


which contains several provisions concerning the right to a fair hearing, entrenches access to the courts as a fundamental right in section 36(1)

In the determination of his civil rights and obligations, including any question by or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.

In Bill Const. Co. Ltd v Imani and Sons Ltd5

(2006) 19 NWLR (Part 1013), 4 SC.

the Supreme Court held (per Onnoghen JSC) that section 33(1)6

Now section 36(1) of the Constitution.

confers on every citizen who has any grievance the right of access to the courts to ventilate such complaints and compels the court that would determine the rights of such a person to accord the person a fair hearing. Thus in the course of this article, it will become obvious that provision for an opportunity to be heard in law does not necessarily translate to a guarantee of access to justice. The nature of such an ‘opportunity to be heard’ must be scrupulously examined to be sure that it does not at once offer an opportunity to be heard and ultimately shut out an aggrieved party from the courts. In other words, suppose an ‘opportunity to be heard’ is misconceived, merely theoretical or constitutes a machinery of injustice, what would be the proper position? It is in such circumstances that there would be a need to adopt a holistic interpretation of the Constitution

The provisions of section 6(6)(b) of the Constitution guarantee access to the courts and those of section 36(1) guarantee fair hearing ‘within a reasonable time by a court (or other tribunal established by law) and constituted in such manner as to secure its independence and impartiality’ (emphasis mine). Any limitations to the right of access to the courts apart from those provided in the Constitution itself must therefore be adjudged as void due to inconsistency with the Constitution;7

CFRN 1999 section 1(3).

however, nothing can justify any derogation from the fundamental right to fair hearing as, for example, provided for in section 36(1). In fact, a careful study of the fundamental rights provisions shows that there are two fundamental rights which cannot be derogated from in any circumstance: namely, the right to fair hearing and the right to freedom from discrimination. This is because the Nigerian Constitution stipulates a restriction on and derogation from the following ‘fundamental rights’: rights to private and family life, freedom of thought, conscience and religion, freedom of expression and the press, right to peaceful assembly and association, and freedom of movement.8

Ibid., section 45. Derogations are quite usual. See the Constitution of the Federal Republic of Germany, article 9 and the Constitution of the US, ninth amend.

The implication of section 45(2) of the Constitution is that the rights to life and personal liberty are also not absolute; however, the rights to fair hearing and freedom from discrimination are conspicuously missing in the list of freedoms which can be derogated from. It is equally submitted that the provisions concerning fair hearing should not be restricted in any form.


Where a statute prescribes a legal line of action for the determination of an issue, an aggrieved party must at least exhaust all the remedies provided before going to court.9

Aribisila v Ogunyemi (2005) 6 NWLR (Part 921), 212 CA.

The plaintiff must ensure that every condition precedent to litigation has been complied with. An example of such a condition is the issue of a particular notice to a defendant before a suit is commenced against defendants like statutory corporations, local governments and suits by legal practitioners for the recovery of professional fees.10

E. Ojukwu and C. N. Ojukwu, Introduction to Civil Procedure, 2nd edn, Helen-Roberts (1999), p. 105.

Other forms of condition precedent to litigation may not take the regular form of pre-action notice per se, but they sometimes define the raison d'être of pre-action notice and are therefore considered so.11

In Nnonye v Ayichie (2005) 2 NWLR (Part 910), 623 SC, the Supreme Court observed that section 41 of the Sheriffs and Civil Process Law of Anambra State (which requires demand for inspection of process and refusal to comply for six days) is a pre-action notice and a condition precedent to the filing of a suit in court against any court bailiff.

In practice, it is sensible for the

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