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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal eventuated from a ruling of the Federal High Court, Lagos Judicial Division, delivering on November 28, 2011. In the said ruling, the court (hereinafter referred to as the lower court) awarded an injunctive order pending appeal. The events culminating to the said order may be summed up thus. By their motion ex parte, the first and second respondents in this appeal, [as applicants], moved the lower court for leave to apply for judicial review to entreat 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 latter Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANTEE/11/12 dated 12 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 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/SUSRV/FIRST GUARANTEE/11/12 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 letters Ref. Nos. PENCOM/INSP/SURV/FIRST/GUARANTEE/11/12 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 further action in any form whatsoever or giving effect to the decision communicated to the Applicants in the letters Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANNTEE/11/12 dated 12th August, 2011 and/or Target Examination Report 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 letters Ref. Nos. PENCOM/INSP/SURV/FIRST GUARANNTEE/11/12 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 Honorable court at the Federal Capital Territory, Abuja.

On September 6, 2011, the lower court ordered as prayed. It granted the applicants (now, first and second respondents), leave to apply for judicial review. The appellant, upon being served with the order of the lower court, repaired to the lower court. It filed two applications on December 15, 2011. In the first application, it implored the court to vacate the said ex parte order of September 6, 2011. The second application importuned the court to strike out the entire suit for want of jurisdiction.

The court took the two applications together and reserved its ruling. On October 20, 2011, it delivered its ruling in which it dissolved its aforesaid ex parte order and struck out the suit for want of jurisdiction. The first respondent was dissatisfied with the ruling, hence, its appeal evidenced in the Notice of Appeal dated October 20, 2011. It, equally, filed an application praying:

…for an order of injunction restraining the respondents whether by themselves, their servants, agent, officers and/or dealing with the assets of First Guarantee Pensions Limited or taking any steps or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the applicant in the letter Ref. Nos. PENCOM/ANSP/SURV/FIRST GUARANNTEE/11/12 dated 12 August, 2011 and/or Target Examination Report dated 22nd March 2011 in order to preserve the res pending the determination of the Appeal filed in this suit and for such further or others as this Honorable Court may deem fit to make in the circumstances.

The appellant opposed the application. Accordingly, it filed its counter affidavit. The court heard arguments on the application on November 17, 2011 and delivered its ruling eleven days later, precisely, on November 28, 2011. In its ruling, the lower court (coram Abang J) awarded an injunctive order pending appeal against the appellant as prayed for in the said application. Aggrieved by the ruling, the appellant appealed to this court.

The following issues were put forward for the determination of this appeal.

(i) Whether the lower court was right when it held that the issuance or non issuance of a pre-action notice in proceedings involving judicial review is an exceptional or special and recondite issue to warrant the grant of injunction pending appeal?

(ii) Whether, despite the decisions of the Supreme Court in, Amadi v. NNPC [2000] 10 NWLR (pt. 674) 76 and Nigercare Development Co. Ltd v. Adamawa State Water Board and Ors. (2008) 9 NWLR (pt. 1093) 498, the Court of Appeal decision; in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1998); 8 NWLR (pt 613) 61 can be said to be an authority to the effect that pre-action notice is not require if judicial review proceedings?