The respondent entered into an insurance contract with UBA Insurance Plc. The appellant later acquired UBA Insurance Plc, taking over all its assets and liabilities. The respondent filed a suit against the appellant at the Federal High Court, Lagos Division alleging breach of contract. In the suit, the respondent claimed special and general damages against the appellant. After being served with the originating process, the appellant filed its defence and a preliminary objection challenging the jurisdiction of the court. The appellant’s challenge of the court’s jurisdiction was based on the allegation that the suit was incompetent following the failure of the respondent to serve pre-action notice on it before filing the suit. The appellant contended that failure of the respondent to serve pre-action notice on it was fatal robbing the court of jurisdiction. The appellant alleged that service of pre-action notice on it is a condition precedent as required by the National Insurance Corporation of Nigeria Act, the law regulating the activities of the corporation and its contracting parties.
The trial court dismissed the preliminary objection and assumed jurisdiction. The court held inter alia that non-compliance with the requirement of a pre-action notice does not take away the constitutional right of a litigant neither does it defeat his cause of action. The court further held that there are exceptions to the rule that non-compliance with service of pre-action notice gives the party entitled to it a private right to insist on the pre-action notice and that the jurisdiction of the court is only put in abeyance until compliance. One of such exceptions is breach of contract. Since the claim of the respondent was founded on breach of contract, the suit was competent notwithstanding the non-compliance. The appellant was aggrieved and filed a notice of appeal at the Court of Appeal, Lagos Division urging the court to overrule the trial court and strike out the suit against it at the trial court.
One of the issues for determination is whether or not the lower court was right in holding that it has jurisdiction to entertain the suit when the condition precedent to filing same had not been complied with.
Held: (Unanimously allowing the appeal and striking out the suit)