In a civil matter, a Statement of Defence affords the Defendant to relay its side to a case and put forth its defence to the allegation(s) as presented by a Claimant. The Defendant must endeavour to present all the defences available to defend its case. If as a pre-condition for the institution of a matter, a defendant is supposed to be served a pre-action notice, once the pre-action notice is not served, that serves as a point of Defence for the Defendant and it must be specifically pleaded in its Statement of Defence to truly serve as a shield.
As the service or non-service of a pre-action notice is a matter of fact, a Defendant whom the defence is available to must plead same. Failure to do so is detrimental to the case of such Defendant. In NOCLINK VENTURES LTD & Anor v. AROH & Anor (2020) 33 WRN 1, the court pronounced as follows:
“Non-service of pre-action notice is a special defence available to the Defendants. It is one of facts. The facts must be pleaded in the Statement of Defence.
It is not for either the trial court or lower court to quixotically do cloister justice by scooping the said special defence from nowhere for the Defendants.”
NOCLINK VENTURES LTD & Anor v. AROH & Anor (2020) 33 WRN 1, page 21.
KEY CONTRIBUTOR: WALE TOHEEB ADEAGBO