Chief Orlando Olaiya Ojo & Anor V. National Pension Commission & Anor (2019)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellants who were applicants commenced proceedings through an ex-parte application before the Federal High Court, Lagos in Suit No. FHC/L/CS/17/2012 seeking leave to apply for judicial review against the respondents for the following reliefs:-
(a) A DECLARATION that the purported removal of the 1st and 2nd applicants Chief Orlando Olaiya Ojo and Nze Chidi Duru vide letter Ref Nos. PENCOM/INSP/SURV/FIRSTGUARNTEE/11/22 dated 12 August, 2011 and signed by one M. K. Ahmad Director-General of National Pension Commission is illegal null and void and of no effect whatsoever.
(b) AN ORDER of certiorari removing into this Honourable Court and quashing the decision removing the 1st and 2nd applicants as Directors of First Guarantee Pension Limited contained in letters Ref. Nos. PENCOM/INSP/SURV/FIRSTGUARANTEE/11/22 dated 12 August, 2011.
(c) AN ORDER setting all the steps or actions taken by the 1st respondent based or connected with or relating to the letters Ref. Nos. PECOM/INSP/SURV/FIRSTGUARANTEE/11/22 dated 12August, 2011.
(d) A PERPETUAL INJUNCTION
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restraining the respondents whether by themselves, their servants, agent, officers and or representatives from taking any or further action in any form whatsoever or giving effect to the decision communicated to the applicants in the letters Ref. Nos. PECOM/INSP/SURV/FIRST GUARANTEE/11/22 dated 12 August, 2011 and or Target Examination/Report dated 22 March, 2011.
The grounds for seeking the reliefs were:-
(a) The applicants are Directors of First Guarantee Pension Limited.
(b) On Friday 12 August, 2011 the applicants were written letters signed by M.K. Ahmad purporting to remove them from office as Directors of First Guarantee Pension Limited.
(c) The decision of the respondents was arbitrary and without regal course to the provisions of the Pensions Reform Act 2004.
(d) The removal of the applicants as Directors of First Guarantee Pension Limited is contrary to the provisions of the Pension Reform Act 2004 and the 2011 Constitution and therefore it is illegal, null and void.
(e) The removal of the applicants as Directors of the respondents violates the subsisting order of interim Injunction made by the Federal High Court
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in Suit No. FHC/ABJ/709/2011 on 11 August, 2011.
The trial Court granted the ex-parte order which was served on the respondents along with the originating processes.
The 1st respondent reacted by filing a notice of preliminary objection challenging the competence of the suit on the ground that the appellants did not first issue and serve on the 1st respondent a pre-action notice of their intention to sue as stipulated in Section 95 of the Pension Reform Act 2004.
After arguments of the preliminary objection were taken, the trial Court upheld the objection and struck out the entire suit for want of jurisdiction (see pages 210-241 of the record).
The appellants appealed against the ruling to the Court of Appeal, Lagos. The lower Court allowed the appeal in part and set aside the order striking out the entire suit.
The appellants were still not satisfied with the decision of the Court of Appeal which affirmed the finding of the trial Court on the necessity for the issuance of a one month’s pre-action notice before the action can be validly instituted against the 1st respondent. They therefore appealed against the findings in their notice
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of appeal dated 17 June, 2013 (see: pages 357-359 of the record).
The 1st respondent purportedly cross-appealed on 25 July, 2013 but there is no record of such a cross-appeal. It is the 2nd respondent that filed notice of cross-appeal on 16th August, 2013 as shown on pages 364-366 of the supplementary record of appeal.
The appellants raised two issues for determination as follows:-
- Whether the lower Court was right in departing from a previous decision of the Court of Appeal which specifically resolved the question of the undesirability of applying pre-action notice requirements to actions begun by prerogative writs against agencies of Government,
- Whether the Justices of the lower Court misapplied the doctrine of stare decisis when they proceeded to follow and apply decisions of the Supreme Court without determining whether the facts and ratios in the cases decided by the Supreme Court were identical with the facts and circumstances of the present case.
The 1st Cross-appellant formulated one issue for determination in its brief deemed filed on 30/1/18 as follows:-
Whether the Court below was right to have upheld the appellants
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issue No. 2 to the effect that the entire suit ought not to have been struck out by the trial Judge because of the presence of the 2nd respondent who was not entitled to a pre-action notice, as a party in the proceedings. (Distilled from Grounds 1 and 2 of the Notice of Cross-Appeal).
The 2nd respondent also formulated a lone issue for determination in his brief which was deemed filed on 30/5/2018 which reads:-
Whether the lower Court was right in holding that the suit should not have been struck out against the 2nd Defendant/2nd Respondent/2nd Cross Appellant (The Hon. Attorney – General of the Federation) distilled from the only ground of appeal.
The appellants filed a reply brief in response to the 1st and 2nd respondents’ briefs and additional authorities. They also filed a cross-respondents’ brief to the Cross-appeal wherein they adopted the issue raised in the Cross-appeal. The Cross-respondents’ brief was deemed filed on 30/1/2018.
In his arguments on issue 1, learned counsel for the appellants submitted that the Supreme Court has never decided that a pre-action notice is mandatory as a condition precedent for instituting suits
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by way of prerogative writs and it is only the Court of Appeal in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1999) 8 NWLR (Pt.613) 61 that has so far pronounced on the desirability of applying the requirements of pre-action notice to suits commenced by way of prerogative writs against public bodies. He argued that the lower Court fell into the same error as the trial Court by applying the decisions of the Supreme Court without testing the facts and ratios of those cases and comparing them with the facts of this case and that of Ezenwa v. Bestway Electrical Manufacturing Co. Ltd supra. He referred to the following cases – Osagie II v. Offor (1998) 3 NWLR (Pt. 541) 205; Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76; Atolagbe v. Awuni (1997) NWLR (Pt. 522) 532; Fawehinmi Construction Co. Ltd v. O.A.U (1998) 6 NWLR (Pt. 553) 171 and Nigercare Dev. Co. Ltd v. Adamawa State Water Board (2008) 9 NWLR (Pt. 1093) 498. While conceding that the last two cases dwelt with pre-action notices, he submitted that in Atolagbe v. Awuni supra the Supreme Court which was called upon to resolve the issue as to whether the
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Chiefs’ Appointment and Deposition (Amendment Edict No. 3 of 1988) of Kwara State which made the payment of N10,000.00 deposit as a condition precedent to the institution of actions against government or other appointing authorities by an aggrieved person in chieftaincy matters was not an infraction of Section 6 (6) (b) of the 1999 Constitution maintained that the above stated issue and its resolution by the Supreme Court had no connection with pre-action notices. He submitted that since none of the decisions referred to above considered the desirability of a strict application of pre-action notice requirements to suits commenced via prerogative writs, there was no basis for the lower Court to prefer them as against the decision in the Ezenwa v. Bestway case. He argued that by the doctrine of stare decisis, the Court of Appeal is bound by its previous decision on a matter on all fours in a subsequent case so long as:-
(a) the earlier decision was not given per incuriam or (b) the decision in the one case is not in conflict with another decision of the Court on the same legal issue; or (c) that the previous decision of the Court of Appeal has not been
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overruled by the decision of the Supreme Court; or (d) the earlier decision has not been neutralised by legislation. He placed reliance on the following cases for the submission:-
Bello v. National Bank of Nigeria Ltd (1992) 6 NWLR (Pt. 246) 206; Otti v. Mobil Oil Nigeria Ltd (1991) 7 NWLR (Pt. 206) 700 and C. C. B (Nig.) Plc v. Ozobu (1998) 3 NWLR (Pt. 541) 290.
On the second issue, learned counsel argued that although lower Courts are bound to follow the decisions of the higher Courts, it is not in all cases that the lower Court is bound to follow all the cases cited before it, they must be seen to be in line with the case at hand. He relied on C. N. Ekwuoggi investment (Nig.) Ltd v. Asco Investment Ltd (2011) 11 NWLR (Pt. 1265) 565 and Agbaeze v. V.C.C. Item District (2007) 7 NWLR (Pt. 1032) 196. He said that this Court in Okoye v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (Pt. 1110) 335 at 362 recognised the prerogative of the lower Court’s refusal to apply the decision of the Supreme Court on facts different from those decided by the Supreme Court. He submitted that the ratio decidendi which represents the principle or ground upon which a case
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is decided is the feature that is binding as precedent whilst the opinion of the judge which do not embody the resolution of the Court is obiter which has no binding effect A.I.C Ltd v. NNPC (2005) 1 NWLR (Pt. 937) 563 at 569-590. He said that the lower Court in resolving the critical issue presented to it for determination viz: whether the pre-action notice requirements was strictly applicable in cases commenced by prerogative writs did not in any portion of its judgement attempt to test or reconcile the facts of this appeal with the decisions of the Supreme Court which he preferred to rely upon. He argued that by failing to make a comparison or even attempt to examine the underlying facts surrounding this case and those determined by the Supreme Court, the lower Court failed to appreciate the purport of the appeal and/or take advantage of the opportunity to carefully appraise the facts and circumstances of the instant case as was done by the trial judge and this failure of the lower Court to correctly test the ratios in the cases decided by the Supreme Court in contrast to the decision of the Court of Appeal in the Ezenwa v. Bestway case was wrong and
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constituted a misapplication of the doctrine of stare decisis. He urge this Court to resolve the issue in favour of the appellants.
The 1st respondent submitted that the lower Court was wrong in arriving at the decision that since the Attorney-General of the Federation was not protected in relation to the pre-action requirement, the trial Court could not strike out the action against him as only the 1st respondent was entitled to such a beneficent order. Learned counsel pointed out that the 1st respondent’s motion dated 15 September, 2011 was for an order striking out this suit for being incompetent and for want of jurisdiction. Upon successfully moving the application, the trial Court was bound to grant the prayer sought i.e. striking out the suit filed by the appellants and not the name of the 1st respondent since this was not the relief sought in the motion. Learned counsel contended that the suit before the trial Court is not severable such that when the name of the 1st respondent is struck out, the appellants’ suit can proceed as the 2nd respondent was just a nominal party and there was no specific claim against him. He relied on Mobil Production (Nig.) Unlimited v. LASEPA
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(2002) 18 NWLR (Pt. 798) 1 in arguing that the Court can save a suit filed against joint and several defendants where the reliefs sought raise a cause of action against each of the several defendants but where there is no specific relief against a nominal party the invocation of the plea of non-service of pre-action notice will inexorably result in the entire suit being struck out. Where the issue of jurisdiction is successfully raised by any of the defendants the suit is terminated by a striking out order as the benefit of a striking out order inures to all the defendants irrespective of the party that raised the objection See: Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490.
The 2nd respondent/Cross-appellant’s arguments echoed what 1st respondent said. Learned counsel contended that the relief sought by the appellants was not directly against the Federal Government and so it will be wrong and improper to go ahead with the hearing of the suit against the Attorney-General alone when the suit has been struck out against the main party, the National Pension Commission as he was only a nominal party. He cited A-G Kano State v. A-G. Federal
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(2007) 6 NWLR (Pt. 1025) 164 to buttress the argument that the Attorney-General of the Federation or of a State can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal or State Governments or any of their authorised agencies in respect of any act or omission complained of by the claimant and the claim or complaint must directly be against the State or Federal Government concerned. He submitted that since suit No. FHC/CS/L/1036/2011 was struck out there is no more valid process left to proceed against the 2nd respondent/cross-appellant because any process after the suit has been struck out will be a nullity ab initio.
In the appellants’ reply briefs to the 1st and 2nd respondents’ briefs of argument, learned counsel argued that the appellants are not seeking to move this Court to overrule its previous decisions on the effect of the pre-action notices; rather the appellants are questioning the propriety of the decision of the lower Court to depart from its previous decision in Ezenwa v. Bestway Manufacturing Co. Ltd supra which was delivered notwithstanding prior and/or existing
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decisions of the Supreme Court on the effect of pre-action notices. He submitted that the argument of the respondent and the finding of the lower Court that the provisions of pre-action notices are all compassing and therefore applicable to all suits and proceedings is certainly not a correct statement of the law.
On the Cross-appeal, the appellants/cross-respondents submitted that the Cross-appellant failed to appreciate the fact that an objection by a party challenging the jurisdiction of the Court to entertain a claim for failure to comply with pre-action notice requirements would not rob the Court of jurisdiction to proceed against other parties joined in the suit who are not covered by pre-action requirements. It is submitted that irrespective of whether the 2nd respondent was a nominal party or not the suit was properly constituted against the 2nd respondent as it is trite that an action should not be defeated by reason of the joinder or misjoinder of a party. See: Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. It is argued that the cross-appellant has woefully failed to demonstrate in its brief why the ratio of this Court in Mobil Production (Nig) Unlimited v. LASEPA
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supra to the effect that a party who is not protected by the provision relating to the pre-action requirement cannot claim that he is not subject to the jurisdiction of the Court.
Learned counsel for the cross-respondents finally submitted that so long as the challenge to the jurisdiction of the Court is founded solely on the ground of non-compliance with a pre-action notice requirement the case of Mobil Production (Nig.) Unlimited v. LASEPA supra decided by this Court still represents the current position of the law; consequently the cross-appeal has no leg to stand on and ought to be dismissed.
This appeal and cross-appeal revolve around Section 95 of the Pension Reform Act 2004 with regard to legal proceedings against the Commission. The section provides as follow:-
“No suit shall be commenced against the Commission before the expiration of a period of thirty days after written notice of intention to commence the suit shall have been served upon the Commission by the intending plaintiff or his agent, and the notice shall clearly and explicitly state –
(a) the cause of action;
(b)the particulars of the claim;<br< p=””
</br<
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(c) the name and place of abode of the intending plaintiff; and
(d) the relief which he claims.”
There is no dispute regarding the striking out of 1st respondent/cross-appellant’s name from the suit since the pre-action notice was not filed before the commencement of the suit through the ex-parte application. The bone of contention rests with the effect of the striking out order on the second defendant who is said to be a nominal party. A similar argument was advanced in Mobil Producing (Nig.) Unlimited v. LASEPA supra to the effect that where a party is struck out of a suit by reason of failure to serve a pre-action notice on it there would be nothing left in the suit because the real object of the declaratory action was directed at FEPA and the 4th set of defendants were merely nominal parties.
In correcting this wrong notion, Ayoola JSC reviewed several authorities namely:- Katsina Local Authority v. Makudawa (1971) 7 NSCC 119, (1971) 1 NWLR 100; Gambari v. Emir of Ilorin (1990) 5 NWLR (Pt. 152) 572; Fumudoh & Anor v. Aboro (1991) 9 NWLR (Pt. 214) 210; Anambra State Government v. Nwankwo (1995) 9 NWLR (Pt. 418) 245; Umukoro v. NPA
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(1997) 4 NWLR (Pt. 502) 656 and NPA v. Ntiero (1998) 6 NWLR (Pt. 555) 640 and arrived at the conclusion that a suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice provided such party challenges the competence of the suit and those parties not protected by the law requiring service of pre-action cannot claim that they were not subject to the jurisdiction of the Court. The object of the notice is to give the defendant breathing time so as to enable him determine whether he should make reparation to the plaintiff. The Court drew a distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts and proffered the guidelines per the leading judgement of Ayoola JSC at pages 33-32 supra:-
“(1) Where on the face of the proceedings superior Court is incompetent incompetence should not be presumed.
(ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its incompetence and decline to exercise jurisdiction, even if the
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question of its incompetence has not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie.
(iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence.
(v) Where the competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the
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issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons.
(vi) A judgement given in proceedings which appear ex facie regular is valid.”
The submission of the appellant that a pre-action notice is mandatory and a condition precedent for instituting a suit is true to the extent that the party entitled to the pre-action notice raises the objection timeously since the right can be waived and it enures only to the party entitled to the pre-action notice which in the instant case is available to the 1st respondent only and not the 2nd respondent/cross-appellant. Having struck out the action against the 1st respondent, the 2nd respondent/cross-appellant does not enjoy the protection offered to the 1st respondent. The action is still valid against the 2nd respondent/cross-appellant. The appellants must give the pre-action notice to the 1st respondent before they can maintain an action against the 1st respondent. The decision of the Supreme Court in Mobil Producing (Nig.) Unlimited v. LASEPA supra overrides that of the Court of Appeal in Ezenwa v. Bestway Electrical Manufacturing Co.Ltd supra.
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I find that both the appeal and cross-appeal lack merit and they are hereby dismissed.
SC.544/2013