Facts:

The appellant (the plaintiff in the court below) contended that he was employed in March 1980, by the respondent and his appointment was wrongfully terminated on 31st August, 1995 without regard to the contract of service, as well as the application of the terms and conditions of the service handbook. The appellant filed a writ of summons against the respondent. After service of the writ, the respondent entered unconditional appearance on 5th day of June, 1996 and subsequently filed a motion on notice dated 20th June, 1996 challenging the competence of the suit. The appellant thereafter, filed his statement of claim dated 24th June, 1996.

On 3rd December, 1997, the respondent applied to withdraw its motion, which was granted and the motion was struck out. In the absence of the respondent’s statement of defence, the appellant filed a motion for judgment dated 14th January, 1999, which was not moved before the suit was transferred to High Court No. 15 before Justice E.C. Ahanonu on 26th June, 1999. The respondent then filed another motion dated 15th July, 1999 challenging the competence of the action while the appellant filed a counter affidavit in response thereto. In moving the motion on 5th October 1999, the respondent challenged the competence of the suit on the ground that the appellant failed to serve pre-action notice on the respondent as provided by section 26 (2) of the NICON Act, Cap 263, Laws of the Federation 1990.