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this question by both parties to the appeal and it is
my view that the appellant has failed to
substantiate both requirements and his case in this
regard must fail.
From the facts of this case it is clear that the
defendant/respondent although he has entered an
unconditional appearance has followed it since
becoming aware of the irregularity by an
application challenging the competency of the
action without first having been served with a
pre-action notice. In fact what has transpired since
the first application to challenge the competency of
the action can be characterised as processes
challenging the writ. In this regard the respondent
has not relented at all. The crucial question here is
discovering a clear mindset of the respondent as
per his actions in regard to the exercise of his right
of making a choice of the two benefits available to
him as predicated upon in the circumstances of the
peculiar facts of this matter; that is to say, in this
case notwithstanding that he has entered an
unconditional appearance before protesting the
incompetency of the action. In other words, the
court has to be satisfied that the party as the
respondent here has consciously waived his right so
as to uphold the plea of waiver. Put in another way
such skirmishes as have occurred in regard to the
facts in this matter cannot be taken to constitute a
voluntary waiver. See Kano State Development
Board v. Fanz Construction Ltd. (supra).
Furthermore, it is clear on the facts that the