Chief Orlando Olaiya Ojo & Anor V. National Pension Commission & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

The appellants herein [as applicants] entreated the Federal High Court, Lagos Judicial Division, by an ex-parte application, for leave to apply for judicial review. They beseeched the court (hereinafter referred to as the lower court) for the following reliefs:

a. A declaration that the purported removal of the first and second applicants, Chief Orlando Olaiya Ojo and Nze Chidi Duru, vide letter Ref. Nos. PENCOM/INSP/SURV/FIRSTGUARNTEE/11/22 dated 12th of August, 2011 and signed by one M. K. Ahmed, Director General of National Pension Commission, is illegal, null and void and of no effect whatsoever;

b. An order of certiorari removing into this court and quashing the decision removing the first and second applicants as Directors of First Guarantee Pension Limited contained in letters Ref. Nos.PENCOM/INSP/SURV/FIRSTGUARANTEE/11/22 dated 12th August, 2011;

c. An order setting aside all the steps or actions taken by the first respondent based (sic) or connected with or relating to the letter Ref No.PENCOM/INSP/SURV/FIRSTGUARNTEE/11/22 dated 12th of August, 2011;

d. A perpetual Injunction restraining the respondents whether by themselves, their servants, agents, officers and or representatives from taking any or further action in any form whatsoever or giving effect or any directives to the decision communicated to the applicants in the letter Ref No. PENCOM/INSP/SURV/FIRSTGUARANTEE/11/22 dated 12th August, 2011 and/or Target Examination dated 22nd March 2011;

2. An order that the grant of leave shall operate as a stay of all actions and steps taken by the Respondents in respect of or in relation to or in connection with the letter Ref. No.PENCOM/INSP/SURV/FIRSTGUARANTEE/11/22 dated 12th August, 2011 and Target Examination Report dated 22nd March 2011 pending the determination of the substantive application for judicial review or pending further order by this court;
3. An order granting leave to the plaintiffs/applicants to serve the Originating Processes in this suit on the respondents who reside outside the jurisdiction of this Honourable court at the Federal Capital Territory, Abuja.

On September 6, 2011, the lower court ordered as prayed in the said application. It granted them leave to apply for judicial review. The first respondent, swiftly, reacted to the processes served on it. By an application on notice, it implored the lower court to discharge the said ex-parte order of September 6, 2011. It, equally, entreated the lower court, with another application, to strike out the suit at the lower court for want of jurisdiction.

The court took the two the applications together. In its ruling, the court, (coram Abang J.), upheld the first respondent’s applications. It not only struck out the suit for want of jurisdiction, it, also, discharged the said ex-parte order. The Notice of Appeal dated October 20, 2011, was the appellants’ expression of their grievance against the said ruling. They formulated two issues for the determination of this appeal from their five grounds of appeal. They were couched thus:

1. Whether actions commenced against public officers or statutory bodies by way of judicial review are contemplated by the provisions of the law requiring the issuance of pre-action notice.
2. Whether the lower court was right to strike out the entire suit instituted against the two respondents on grounds of failure to issue pre action notice against the first respondent.

SUBMISSIONS OF COUNSEL

ISSUE 1

Whether actions commenced against public officers or statutory bodies by way of judicial review are contemplated by the provisions of the law requiring the issuance of pre-action notice?

SUBMISSIONS OF THE APPELIANTS’ COUNSEL

When this appeal came up for hearing on April 17, 2013, learned senior counsel for the appellants, Babajide Koku, SAN, appearing with Biola Ogundare (Mrs.), adopted the appellants’ brief of argument filed on February 21, 2012 and the reply brief filed on April 12, 2012, although deemed, property filed and served on February 12, 2013. In the said brief, he submitted that the requirement of section 95 of the pensions Reform Act, 2004 on the issuance and service of a pre-action notice before the commencement of an action against the first respondent was not absolute but admits of exceptions.

He canvassed the view that section 95 (supra) does not contemplate suits commenced by way of a prerogative writ. According to him, because of the nature of, and urgency involved in commencing, a prerogative writ, the insistence on the issuance of a pre-action notice would amount to permitting the first respondent to hide behind the mask of mere technicality to thwart, protract and defeat the consideration of an application for certiorari on the merit, Ezenwa v. Best way Electrical Manufacturing Co. Ltd (1999) 8 NWLR (Pt. 613) 61, 78 – 79.