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that in the former case, appearance simplicita
suffices as a waiver of the irregularity in serving of
the irregular processes; whereas in the latter case,
as in this case, the law has provided the procedure
for issuing pre-action notices and even then since
the abolition of demurrer it is permitted to be
pleaded as an irregularity. I find no basis agreeing
with the appellant that the filing of an
unconditional appearance by the respondent per se
is without more coterminous on the facts of this
matter with waiving his privilege of raising an
objection for non service of pre-action notice in this
action.
The respondent on the facts of this matter cannot
evidently be said to have waived his privilege to be
served a pre-action notice in this matter. And I so
hold. Issue 3 is resolved against the appellant.
In the result, I can see no merit in this appeal. The
appellant having not served on the respondent a
pre-action notice as provided by Section 26(2)
(supra) the instant action is a non-starter and
incompetent and the court has no jurisdiction to
deal with it. I affirm the concurrent decisions of the
two lower courts striking out this matter for
incompetency. The appeal is hereby struck out
accordingly. In the circumstances of this case I
make no order as to costs.
Appeal struck out.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I
have had the benefit of reading in draft, the lead