LEGAL PRINCIPLE: CIVIL PROCEDURE – Pre-Action Notice – Waiver of Statutory Notice by Taking a Step in the Proceedings
PRINCIPLE STATEMENT
Waiver of a statutory pre-action notice is not simple. Appearance by way of demurrer is not enough to amount to waiver. The waiver must be clear and unambiguous, such as allowing all evidence to be taken or even decision given before challenging the hearing.
RATIO DECIDENDI (SOURCE)
Per Belgore, JSC, in Fawehinmi Construction Co. Ltd. v. Awolowo University (1998) NLC-2241991(SC) at p. 7; Paras D–E.
"Waiver is not all that simple, appearance by way of demurrer is not enough to amount to waiver... The waiver must be clear and unambiguous like allowing all evidence to be taken or even decision given before challenging the hearing. It will then be shown that the party deliberately refused to take advantage of the right when it availed him."
EXPLANATION / SCOPE
Waiver of a statutory right to pre-action notice requires clear and unambiguous conduct. Filing a demurrer is insufficient. The party must have deliberately refused to take advantage of the right. The principle protects statutory requirements. The court will not infer waiver lightly. The conduct must be unequivocal. The rule applies to all statutory notice provisions. The party asserting waiver must prove it. The principle promotes compliance with statutory requirements.