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CHIEF ORLANDO OLAIYA OJO & ANOR v. NATIONAL PENSION COMMISSION & ANOR

(2019) LPELR-47839(SC)

In The Supreme Court of Nigeria

On Friday, the 31st day of May, 2019

SC.544/2013


Before Their Lordships

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA'AHS Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

UWANI MUSA ABBA AJI Justice of The Supreme Court of Nigeria


Between

1. CHIEF ORLANDO OLAIYA OJO
2. NZE CHIDI DURU
-APPELLANTS/ CROSS RESPONDENTS - Appellant(s)

AND

1. NATIONAL PENSION COMMISSION
2 THE ATTORNEY-GENERAL OF THE FEDERATION
-CROSS APPELLANTS/ RESPONDENTS - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on the issue of Non Service of Pre-Action Notice.
FACTS:
This appeal is against the decision of the Court of Appeal.

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 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 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.

Dissatisfied, 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.

Further dissatisfied with the ruling of the lower Court, the appellants appealed to the Supreme Court while the 2nd respondent cross appealed.

ISSUES:
The appellants raised two issues for determination which are as follows:-
1. 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,
2. 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 which is:-
Whether the Court below was right to have upheld the appellants  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.

The 2nd respondent formulated a lone issue for determination which is:-
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).

DECISION/HELD:
In conclusion, the Supreme Court dismissed the appeal and the cross appeal for lacking in merit.


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