By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

INTRODUCTION

The CAMA 2020, has been described as an attempt to add vigour to the government’s economic reforms and ongoing initiatives on the ease of doing business in Nigeria.[1] Part of the key provisions of the CAMA 2020 under Part A is the time limit stipulated for the commencement of legal action against the Corporate Affairs Commission.[2] There is no doubt that the main purpose of a pre-action notice has always been to promote and give an opportunity for out-of-court settlement[3]. In addition, a pre-action notice has been upheld as just and consistent with our civil procedure wherever statutes prescribe that such should be given.[4]

This novel provision in the Act has introduced sweeping reforms aimed at improving the law establishing the Commission in addressing frivolous suits that were slapped on the Commission with ease in the past. This work will examine the meaning of a pre-action notice and its scope, the effect of a pre-action notice under the CAMA 2020, as well as the implication of failure to comply with the relevant provisions of the law in evolving changes in the corporate landscape in Nigeria.

What is a Pre-action notice?

A pre-action notice is a notice provided for by a statute or enabling law that requires notice of an intended legal action to be first served on certain would-be defendants by an aggrieved party before such party may seek judicial redress[5] and this includes notices to certain corporate bodies. Such notice of an intended legal action is usually required to disclose the cause of action, relief or reliefs sought, and the name and place of business or abode of the aggrieved party,[6] etc.

A pre-action notice, where it is required, constitutes a condition precedent for the institution of action and any action brought without the notice would be premature and incompetent[7]. It is a condition that must be fulfilled in appropriate cases before seeking the intervention of the Court. A ‘condition’ is a “provision which makes the existence of a right dependent on the happening of an event, as opposed to an absolute right.

Meaning of a cause of action.

According to the Black’s Law Dictionary, a cause of action is a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.[8]

It may also be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be:

A primary right of the plaintiff actually violated by the defendant; or
The threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in case of actions or suits for injunction; or
It may be that there are doubts as to some duty or right claim, which the plaintiff is entitled to have cleared up so that he may safely perform his duty, or enjoy his property.[9]
The Pre-action Notice Requirement Under CAMA 2020

As part of the novel provisions of CAMA 2020, it was introduced to give the Commission (the defendant) breathing time to meet the plaintiff either to think of reparation or to negotiate an out-of-court settlement. Section 17 (1) provides for a minimum period of 30 thirty days before a plaintiff or its agent could file a suit against the Commission after a written notice to file such Suit is served upon the Commission. Subsection 2 of section 17 also specifically stipulates the requirements of the notice.[10] Such notice is required to state the following:

cause of action;
particulars of the claim;
name and place of abode of the intending plaintiff; and
relief sought.
Thus, the main purpose of this provision is to assist in stemming spurious litigation brought against the CAC. [11]

However, where an aggrieved party or company has satisfied the pre-requisite of section 17, further laxity may make such party encounter some difficulty in instituting the action against the CAC, in the sense that Section 2(a) Public Officers Protection Act[12] states that an action against public officers shall be instituted within three months after the neglect complained of. This means time begins to run irrespective of the absence of knowledge on the part of the aggrieved party at the time the cause of action arose, except in cases of fraud.[13]

To this end, any such action must be commenced within three months, with a one-month notice to the CAC. This may, however, look like a stumbling block as non-compliance would strip the Court of jurisdiction over such a suit.

Effect of Non-Service of Pre-Action Notice.

Non-service of a pre-action notice if required by statute is an irregularity that renders an action incompetent. [14] This gets to the root of the matter because failure to serve a pre-action notice deprives the Court of jurisdiction to entertain the Suit, and such will be struck out for failure to adhere to a condition precedent, which is section 17 of the CAMA 2020.

Thus, any preliminary objection raised to strike out the suit for lack of jurisdiction to this effect will be substantially sustained.

General Exceptions to Service of Pre-Action Notice.

In consideration of the decisions of the Court on the mandatory and constitutional nature of pre-action notice in different statutory provisions, there are some exceptions to it, viz:

Where the defendant waives it by not pleading it or raising it by motion (a preliminary objection).
Where irreparable damage would be done if the prospective plaintiff were to issue the notice and wait out the statutory period before accessing the court.
Where the requirement of a pre-action notice is an impediment to easy accessibility to court, it becomes unconstitutional. 30 days before a party files his motion on notice for enforcement of fundamental rights is more than an impediment and equivalent to making hell a storage room for ice cream.
Where a fundamental right enforcement is involved. This is because neither the Constitution nor the FREP Rules, 2009 provided a precondition or did anticipate an additional formality on fundamental right cases since they are presumably matters of emergency. Hence a requirement of a pre-action notice by a statutory provision will be found inconsistent with the Constitution under Section 1 (3) 1999 CFRN.[15]
Conclusion

In conclusion, the foundation for the jurisdiction to hear and determine an action against the Corporate Affairs Commission is hinged on relevant provisions of the law and failure to adhere to these laws will rob the Court of the jurisdiction to entertain Suits brought before it. This has thus in recent years, tremendously reduced the ease of filing frivolous suits against the Commission.

Snippet: Pre-action notice, where it is required, constitutes a condition precedent for the institution of action; any action brought without the notice would be premature and incompetent.

Keywords: pre-action notice, timeframe to sue cac, public officers protection.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and a vast knowledge of Corporate and Commercial Law and Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at [email protected]

CONTRIBUTOR: Chikezie M. Iwu

Chikezie is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Corporate and Commercial Law.

He can be reached at [email protected]

[1] Ogwemoh, Sylva and Folarin, Akorede, The Companies And Allied Matters Act 2020 – Highlights of the Reforming Provisions and their Implications for Businesses and Investors in Nigeria (September 10, 2020). Available at SSRN: https://ssrn.com/abstract=3720259 or http://dx.doi.org/10.2139/ssrn.3720259 accessed on the 19th of September, 2023.

[2] The principal body responsible for the implementation of the provisions of the Act. See Section 1 of CAMA 2020.

[3] Chiamaka Irene Chukwukelu: A Comparative Analysis Of Major Changes Introduced By The Companies And Allied Matters Act; 2020. https://thenigerialawyer.com/a-comparative-analysis-of-major-changes-introduced-by-the-companies-and-allied-matters-act-2020/ accessed on 19th September, 2023

[4] Ani Comfort Chinyere, D.A Guobadia and A. Adekunle (Eds). The Uwais Court. The Supreme Court and The Challenge of Legal Development (NIALS, Lagos, 2006) pp 341-359. https://legalpediaonline.com/sample-message-1/ accessed on 19th September, 2023

[5]“Action against Government” Learn Nigerian Law https://www.learnnigerianlaw.com/learn/administrative-law/action accessed on 19th September 2023.

[6] Learn Nigerian law: Op-cit.

[7] Learn Nigerian law: Op-cit.

[8] Black’s Law dictionary 266 (10th ed. 2014)

[9] Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 170 (2d ed. 1899) cited in Black’s Law dictionary 266-267 (10th ed. 2014)

[10] Grant Thornton Nigeria: Companies and Allied Matters Act, 2020 – Highlights of Changes and New Enactments. https://www.grantthornton.com.ng/globalassets/1.-member-firms/nigeria/media/cama-2020—gtng-publication.pdf accessed on 19th September, 2023

[11] DCSL Corporate Services Limited: OVERVIEW OF THE COMPANIES AND ALLIED MATTERS ACT 2020

[12] Cap. P41, LFN 2004.

[13] Buae Enterprises v. Obong (2016) LPELR-4205, Akibu v. Azeez (2003) All FWLR 149, 1490 at 1511.

[14] Mekaowulu v Ukwa West Local Government Council, (2018) LPELR-43807-CA

[15] Chidera Nwokeke: Failure To Serve Pre-Action Notice Is Not A Limitation In A Fundamental Rights Enforcement Action In Nigeria. Available at https://thenigerialawyer.com/failure-to-serve-pre-action-notice-is-not-a-limitation-in-a-fundamental-rights-enforcement-action-in-nigeria-by-chidera-nwokeke/ accessed on 18th September, 2023