National Pension Commission V. First Guarantee Pension Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

By an ex parte application, the first respondent in this appeal, (as applicant), beseeched the Federal High Court, Lagos Judicial Division, (in this judgment referred to as “the lower court”), to favour it with the following reliefs:

1. An order granting leave to the applicant to apply for judicial review by seeking the following reliefs:

(a) A declaration that the taking over of the management of First Guarantee pension limited with effect from Monday 15th August 2011 and constitution of the Interim Management committee made up of Messrs by Aremu and a third member to superintend the affairs of the applicant until shareholders of the applicant convene an EGM/AGM with a view to properly constituting a board contained in letter Ref. No PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 dated 12th of August 2011 and signed by one M.Y. Datti, Head, Surveillance Department of National Pension Commission, is illegal and void and of no effect whatsoever;

b. An order of certiorari removing into this court and quashing the decision constituting an interim management committee and taking over of the management of the applicant contained in letter Ref No. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 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/11/23 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 letters Ref. NOS. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 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. No. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 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 plaintiff/applicant 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 first respondent’s application for leave to apply for judicial review. Upon being served with the said order, the appellant, swiftly, greeted the order and the first respondent’s suit with two applications filed on December 15, 2011. While one of the applications entreated the lower court to vacate its said ex parte order, the other application contested the jurisdiction of the court to entertain the first respondent’s suit. Hence, it prayed that the said suit should be struck out for want of jurisdiction. The two applications were taken together. In its ruling of October 20, 2011, the lower court vacated the said order and, further, struck out the suit for want of jurisdiction.

Aggrieved by the said ruling of the court (coram Abang J), the first respondent appealed to this court by its Notice of Appeal dated October 20, 2011. On the same day, it beseeched the lower court with an application for an:

…order of injunction restraining the respondents whether by themselves, their servants, agents, officers and/or representatives from interfering with 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 letters Ref. Nos. PENCOM/ANSP/SURV/FIRST GUARANTEE/11/23 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 other orders as this Honorable Court may deem fit to make in the circumstances.

Expectedly, the appellant, stridently, contested the application as evident in its counter-affidavit of November 11, 2011. The lower court heard the application on November 17, 2011 and reserved its ruling to November 28, 2011. In its ruling, the court favoured the first respondent with the injunctive order it prayed for pending appeal. The present appeal is the appellant’s expression of its dissatisfaction with the said ruling granting the first respondent an injunctive order pending the determination of its appeal.

The following issues were distilled from the Notice and Grounds of 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 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 required in judicial review proceedings?

(iii) Whether the lower court evenly weighed the balance of convenience between the appellant and the first respondent in granting the injunction pending appeal in favour of the first respondent?