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(Pt.355) 171, Kano State Development Board
v. Fanz Construction Ltd. (1994) 4 NWLR
(Pt.142). It has surmised that the proper
question is whether the filing of an
unconditional memorandum of appearance by
the respondent in this matter on its peculiar
facts has amounted to the intentional or
voluntary relinquishment of the respondent's
right to be served a pre-action notice as
provided by Section 26(2) of the NICON Act.
And I agree with that proposition as the gist of
this matter. From the appellant's case here,
there can be no doubt that he has grossly
misconceived the concept of waiver vis-a-vis
as it relates to a party's right to pre-action
notice as expounded in the cases the
appellant has relied upon above. I think that
ordinarily depending on the facts of each case
the implication of entering unconditional
appearance to a writ of summons served on a
defendant without fulfilling a condition
precedent of firstly serving him with
pre-action notice where it is so required by
the law raises an irregularity which can be
waived. The concept of waiver has been
defined in Ariori v. Elemo (supra) it says that
"...it presupposes that a person who is to
enjoy a benefit or who has the choice of two
benefits is fully aware of his right to the
benefit, or where he has a choice of two, he
decides to take one but not both". See:
Vyuyan v. Vyuyan 30 Beav 65 per Sir John