CHIEF ORLANDO OLAIYA OJO & ANOR v. NATIONAL PENSION COMMISSION & ANOR
(2013)LCN/6246(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2013
CA/L/17/12
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ORLANDO OLAIYA OJO
2. NZE CHIDI DURU Appellant(s)
AND
1. NATIONAL PENSION COMMISSION
2. THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
RATIO
THE PURPOSE OF A PRE-ACTION NOTICE
Now, the recognition of the legitimate purpose of pre-action notice as a procedural provision has an ancient ancestry, dating back to the decision of WACA in Ngiligila v. Tribal Authority, Nongowa Chiefdom (1953) 14 WACA 395, 327. The common thread that runs through such provisions is their imperative vocabulary, whose effect is to debar a court from entertaining a suit instituted without compliance with their provision.
The authorities are many, see, for example, section 46(1) of the University of Ife (now OAU) Act, which was considered in FCA Ltd v. OAU (1993) 5 NWLR 171; Section 29(2) of the Federal Environmental Protection Act, which was considered in Mobil Nig Unltd v. LASEPA (2003) 5 WRN 1; section 11 (2) (now 12(2) of the NNPC Act considered in Amadi v. NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; section 97 of the NPA Act – Umukoro v. NPA (1997) 4 NWLR (pt. 502) 656.
Others include Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100; section 15(1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 of 1988 of Kwara State, Atolagbe v. Awuni (1997) 7 SCNJ 4; section 11(2) of the State proceedings Law Cap 131 Vol.4 (Laws of Anambra State), Anambra State Government v. Nwankwo (1995) 9 NWLR (pt. 418) 247; NPC – Nig Cement Corporation Ltd v. NRC (1992) NWLR (pt. 220) 747.
Essentially, there are two main limbs that constitute the essential pre-conditions consecrated in the above provisions. In this appeal, only the first limb is in contention. This first limb commences with the opening phrase: “No suit shall be commenced.” PER NWEZE, J.C.A.
THE MEANING OF THE TERM “SUIT”
The word “suit” was first used in the Fourteenth Century. Its lexical origin is traceable to the Middle English word “sute, seute,” words which traced their roots to the Anglo-French word “siute,” which itself derived from the Vulgar Latin “sequita,” the feminine form of “sequitus.” It means “an action or process in a court for the recovery of a right or claim”. Its synonyms include “action,” “proceeding,” “lawsuit,” Merriam-Webster, The New Webster’s Dictionary of The English Language (International Edition) 755. It has also been defined as “any proceeding by a party or parties against another in a court of law,” B. A. Garner, Black’s Law Dictionary (Eight Edition) (MN: West Publishing Co. 2004) 1475. PER NWEZE, J.C.A.
THE DOCTRINE OF STARE DECISIS
It is, we believe, an elementary proposition that the Supreme Court is at the apex of the: judicial hierarchy in Nigeria. Thus, irrespective of the reasoning of any other court, the lower court was under obligation to follow the above decisions of the apex court.
The said decision in Ezenwa v. Bestway (supra) was reported in 1999. Before then, a host of Supreme Court decisions had settled this question in favour of the view that the expression “no suit” covers all suits and whatever causes of action, Umukoro v. NPA (1997); Barclays Bank v. CCB (1996); Owena Bank of Nig Plc (1997); Atolagbe v. Awuni (1997); Osagie 11 v. Ofor (1998); FCO v. OAU (1998) etc.
The lower court was, therefore, duty-bound, in strict observance of the doctrine of stare decisis to follow the above decisions of the apex court and not the contrary in Ezenwa v. Best way (supra). We, therefore, hold that the lower court’s posture is unimpeachable. We resolve this issue against the appellant. PER NWEZE, J.C.A.
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.
He referred to Order 34 Rule 4 of the Federal High Court (Civil procedure) Rules, 2009 which provides that an application for judicial review must be filed within three months of the accrual of the cause of action. He noted that an applicant mist first seek and obtain the leave of court before the application for judicial review could be filed, Order 34 Rules 3 of the Federal High Court (Civil procedure) Rules 2009.
On the authority of this court’s decision in Ezenwo v. Best way Electrical Manufacturing Co. Ltd. (supra) at page 78, he contended that an applicant for an order of Certiorari does not need to comply with the pre-action notice requirement in the above Act. In other words, that application for the order of Certiorari are exempted from compliance with the provision of section 95 (supra). He observed that Nigercare Development Co. Ltd v. Adamawa State Water Board and Ors (2008) 9 NWLR (Pt. 1093) 498; Amadi v. NNPC (2000) 10 NWLR (pt.674) 76, which the lower court relied, were inapplicable because their proceedings were commenced by Writ of Summons and not by prerogative Writs. In effect, the cases are distinguishable from the instant suit.
Citing page 231 of the record, he endorsed the position of that lower court that, in the above cases, the apex court never considered nor made any pronouncements whatsoever on the issuance and service of pre action notice in on action for judicial review.
He canvassed the view that the pronouncements by the Supreme Court that the non issuance and service of pre action notice prohibit the commencement of all suits whatsoever would only apply where the suit was commenced by way of a Writ of Summons and not by way of judicial review for an order of Certiorari. He took the view that the lower court, having correctly distinguished the facts of Ezenwa’s case from those of Amadi’s case (supra), ought not to have, slavishly, followed the Supreme Court decision. He urged the court to so hold.
ISSUE 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?
On this issue, he noted that the appellants sued two respondents, namely, the National pension Commission and the Attorney General of the Federation. He observed that the only party that complained about non issuance of pre-action notice was the first respondent. He took the view that there was no requirement of service of pre-action notice on the second respondent. In the circumstance, therefore, the proper order, which the lower court should have made, was one striking out the name of the first respondent. In his view, the court should not have struck out of the entire suit as it was, properly, constituted against the second respondent. He re-iterated the age-long position that the court cannot grant to a party what it has not asked for, Sodipo v. Ogidan (2008) 4 NWLR (pt.1077) 342; JAMB v. Orji (2008) 2 NWLR (Pt. 1072) 552.
He explained that the second respondent neither entered appearance nor filed any objection challenging the jurisdiction of the lower court to entertain the suit against it. He maintained that there was no requirement of the law for the service of pre-action notice on the second respondent. Thus, the issuance and service of a pre-action notice (where applicable), in this case, only affected the first respondent. He submitted that the suit ought to subsist against the second respondent at the lower court. He urged the court to set aside the ruling of the lower court delivered on October 20, 2011 and allow the appellants’ appeal.
FIRST RESPONDENT’S SUBMISSIONS
On his part, learned senior counsel for the first respondent, Emeka Ngige, SAN, with Obiora Atuegwu Egwuatu and K. Ojukwu, adopted the first respondent’s brief filed on March 2, 2012. In it, he concreted a sole issue for the determination of this appeal: “whether the lower court was right in striking out the appellants’ suit for being incompetent”?
He submitted that the lower court was right in striking out the appellants’ suit for being incompetent. He observed that the lower court anchored its decision on the fact that a pre-action notice, mandatorily, required under section 95 (supra) was not issued and served on the first respondent before the suit was filed.
In his view, the above provision sets a condition precedent to be met or fulfilled before an intending plaintiff could approach the court for the adjudication of any dispute against the Commission. He maintained that non-compliance with the provision of the said section 95 (supra) would render the suit liable to be struck out. This must be so for, not having been initiated by due process of law, such a suit would be incompetent, Ntiero v. NPA (2008) 10 NWLR (pt. 1094) 129. In such a situation, the defendant has the right to insist on such notice before the plaintiff could approach the court, Nigercare Dev Co. Ltd v. Adamawa State Water Board and Ors. (2008) 9 NWLR (pt. 1093) 498. He cited Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76.
He contended that the words used in section 95 (supra) are plain, clear and unambiguous. Thus, the court must construe the enactment according to its expressed intension, Owena Bank Nig. Plc v. N.S.E. Ltd. (1997) 8 NWLR (pt 515); Barclays Bank v. Central Bank of Nigeria (1976) 1 All NLR 409, approvingly, cited in Amadi v. NNPC (supra); Bakare v. NRC (2007) 17 NWLR (pt. 1064) 606, 639 – 641.
He disagreed with the view of the appellant’s counsel that the requirement of section 95 (supra) admitted of an exception in that it did not contemplate suits commenced by way of judicial review, citing Amadi v. NNPC (supra). He observed that the decision in Ezenwa v. Best Way Electrical Manufacturing Co. Ltd (supra) was reached per in curiam. He distinguished the facts of the case from the facts of instant case. He explained that the decisions in Manasseh Ugoh v. Benue State Local Government (1995) 3 NWLR (pt. 383) 288; Nnaemeka Udene v. Rapheal Ugwu (1997) 3 NWLR (pt. 491) 57; Attorney-General of Federation and Ors. v. Chukwuemeka Agwuna (1995) 4 NWLR (pt. 388) 234, which this court relied, did not deal with the issues of pre-action notice and service or non service of a pre-action notice.
The erudite senior counsel contended that Order 34 of the Federal High Court (Civil Procedure) Rules (supra) did not, expressly or by implication, exempt applications for judicial from the pre-action notice requirement in section 95 (supra). Above, the pension Reform Act, being an Act of the National Assembly, is superior to the provisions of the Federal High Court Rules. He noted that the length of pre-action notice required by section 95 (supra) is one month. On the other hand, the length of time required under Order 34 Rule 4 of the Federal High Court (Civil procedure) Rules 2009 for bringing an action for judicial review is three months. He submitted that an intending plaintiff can accomplish all that he is required to do within the time allowed under the Rules of the Federal High Court.
He explained that, in the instant case, the appellants filed its ex-parte application for leave on September 1, 2011. The lower court granted the order on the September 6, 2011, a period of about 5 days. So, he noted that an intending plaintiff could apply for leave and, actually, obtain the leave sought within one week. He maintained that the three months period allowed under Order 34 Rule 4 (supra) for an intending plaintiff to bring an action for judicial review was enough for such a plaintiff to issue and server a pre-action notice (which is just for one month) and seek and obtain leave (within one week) before filing an application for judicial review.
In his view, all these could, conveniently, be accomplished within three months. He observed that under the said Order 48 Rule 4, an intending plaintiff for judicial review, who has run out of time, could apply for an extension of time. He noted that, by the above provision, what was required of an applicant, who was out of time, was to bring an application entreating the lower court for an extension of time, subject to the payment of the default fees. Thus, such an applicant could not be shut out. He emphasized that the law provided remedies to cater for the situation anticipated by the submission of the appellants’ counsel.
He submitted that the thirty days or one month for pre-action notice cannot be said to be an in ordinate time or period, Nigercare Dev. Co. Ltd v. Adamawa State Water Board (2008) 9 NWLR (pt. 1093) 498. He submitted that the fact that the proceedings in Nigercare Development Co. Ltd v. Adamawa State Water Board and Ors. (2008) 9 NWLR (pt. 1093) 498 and in Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76 were commenced by Writ of Summons was not enough to ask this court not to follow the decisions. In his view, the important factor to be considered is the fact that the provision considered in both cases were in pari materia with section 95 of the Pension Reform Act 2004.
He contended that the Supreme Court or this court is faced with the construction of a statutory provision in pari materia with one that had been, previously, construed by the court, it had to follow the principle laid down in the earlier case, Bakare v. NRC (2007) 17 NWLR (pt 1064) 606, 640; Mobil Oil Plc v. IAL 32 INC. (2000) 6 NWLR (Pt 659) 146.
He urged the court to follow the interpretation given to similar provision in the above referred cases in reaching its decisions in this instant case. He pointed out that, just like section 11(2) of the NNPC Act 1977 (supra), section 51(1) and (2) of the Adamawa State Water Board Edict No.4 of 1996 is also, similarly, worded as section 95 of the Pension Reform Act 2004. He drew attention Nigercare Development Co. Ltd v. Adamawa State Water Board (supra). In the said case, the Supreme Court, interpreting the above Adamawa Edict, relied on its earlier decisions in Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536 and Amadi v. NNPC (2000) 10 NWLR 674 76, 517.
The court further held, relying on Fawehinmi Construction Co. Ltd v. Obafemi Awolowo University (1998) 6 NWLR (pt. 553) 171, at 90 and Chief Osagie II v. Chief Ofor (1998) 6 NWLR (pt. 541), that the provision under consideration “relates to all or any type of suit. It is wider and all embracing and different in application, from Section 97 of the Ports Authority Act.” The court concluded by saying that “in other words, it covers all suits and whatever causes of action and is not limited to anything done pursuant to any act or statute,” also, Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (pt. 1064) 606.
The distinguished Senior Advocate of Nigeria contended that, flowing from all the decisions of the apex Court cited above, it would be wrong to argue that the court did not take into consideration the various types of suits. According to the court, it covers all suits and whatever causes of action and that it is all embracing. He, equally, cited Bakare v. Nigerian Railway Corporation (supra) pages 639 – 640, 560.
He urged the court to adhere to the above admonition of the Supreme Court and give the provision of section 95 of the Pension Reform Act 2004, which is plain and unambiguous, its ordinary, grammatical and natural meaning! He canvassed the view that this court cannot overrule the decisions of the Supreme Court on this issue as only the apex court reserved the prerogative to overrule itself. Thus, the appellants must fulfill the conditions for the court to exercise such right, Bakare v. NBC (supra).
SUBMISSION ON ISSUE 2
On this issue, he submitted that the lower court was right to have struck out the entire suit since it was the prayer sought in an application that determined the order to be made by the court where the application succeeded. He noted that the first respondent’s motion on notice dated September 15, 2011 sought for “an order striking out this suit for being incompetent and or for want of jurisdiction,” citing page 184 of the record. He observed that, upon successfully moving the application, the lower court was bound to strike out the suit.
He debunked the claim that the second respondent did not object to the suit. He pointed out that the second respondent counsel, B. R. Ashiru, aligned himself with the application of the first respondent and urged the court to strike out the suit, citing page 258 of the record. In effect, the second respondent asked that the suit be struck out. Above all, the suit was not severable. What is more, the second respondent was merely, a nominal party as nor relief was sought against it. He submitted that where it was clear that a pre-action was not issued and served, where it ought to be so issued and served, a court would have no jurisdiction to entertain the suit. The proper order to be made in the circumstances would be an order striking out the suit, Nigercare Dev. Co. Ltd v. Adamawa State Water Board (supra).
SECOND RESPONDENT’S SUBMISSIONS
On her part, counsel for the second respondent, U. Nwadialor, adopted the sole issue for determination which the first respondent formulated. She associated herself with the arguments proffered by the first respondent. In addition, she formulated the following issue for the court’s determination:
Whether the plaintiffs/appellants’ issue two is a fresh issue for which leave of this court should have been sought and obtained?
She submitted that the appellants’ issue two is a fresh issue on which the lower court was not given the opportunity of making a pronouncement or a decision in the said Ruling of November 20, 2011. She contended that the issue of non appearance and non-contestation of the suit which the appellants leveled against the second respondent in the said issue two was not raised or made an issue by the appellants both in their Counter Affidavit and the written address in opposition to the first respondent’s motion on notice praying the lower court to strike out the appellants’ suit for non issuance and non service of pre-action notice on the first respondent, citing pages 196 – 200 of the record. She noted that there was nowhere in the record where the appellants raised or challenged the second respondent on the issue of non appearance and non-contestation of the suit. She explained that the lower court, in the said ruling, never said anything or made any decision on the issue of non appearance and non-contestation of the suit by the second respondent that would have formed the basis or ratio on which the appellants could have appealed.
She maintained that an appeal is not a new trial. Thus, fresh issues which the lower court did not consider and pronounce upon were not competent the appellate court, Olagunju v. PHCN (2011) 46 (II) NSCQR 583, 598.
She canvassed the view that the said issue two does not flow from the said ruling of the lower court. Thus, the said issue is incompetent before this court. She noted that the appellants did not seek and obtain the leave of this court before raising that fresh issue, Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (pt. 49) 284, 384; Onyesoh v. Nnebedum (1992) 3 NWLR (pt. 229) 315; Olowosago v. Adebayo (1988) 4 NWLR (pt. 88) (sic). She urged the court to strike out the said issue two for being incompetent.
She explained that the second respondent, the Attorney-General of the Federation, was a nominal party who had, all along, been represented by counsel. She referred to page 254 of the record where A. C. Akwiwu (Mrs.) represented the second respondent on September 19, 2011; page 256 of the record where Dr. Ashiru represented the second respondent on September 20, 2011; page 257 of the record where E. A. Ashiru represented the second respondent on September 21, 2011. Indeed, on that day, Ashiru, Esq. submitted thus:
I align myself with the submission of the learned counsel for the first respondent. I urge the court to grant the prayers sought by the first respondent.
She submitted that Ashiru’s request amounted to an entreaty that the plaintiffs’ suit should be struck out. She noted that on October 7, 2011, Ameh Ebute Esq., whose Chambers was instructed to defend the second respondent, appeared in court. He announced appearance for the second respondent, page 260 of the record. On October 20, 2011, D. Daniels represented the second respondent, holding the brief of Senator Ameh Ebute.
She expressed surprise at the appellants’ contention that the second respondent did not appear nor raised any objection to the competence of the plaintiffs’ suit. She noted that Barristers Ashiru, Mrs. Akwiwu, D. Daniels and Senator Ameh Ebute appeared for the second respondent during all the sittings of the trial court. She observed that if the appellants’ complaint in issue two was predicated on the ground that the second respondent did riot file memorandum of appearance as required by Order 7 Rule 1 of the Federal High Court Rules 2009, that complaint would have no basis. The reason is that the main purpose of filing a memorandum of appearance is to bring the Notice of the originating process to the knowledge of the defendant so that he (defendant) can attend court. However, where the defendant has, one way or another, become aware of the existence of an originating process and started attending court physically in obedience to the court’s process, the non-filing of memorandum of appearance may not be fatal to the defendant’s case.
She explained that, in this case, the appellants, through their counsel, became aware of the physical appearance of the second respondent through his counsel, Barristers Ashiru, Akwiwu, Daniels and Ameh Ebute, pages 25, 256, 257 and 260 of the record. She observed that counsel for the appellants did not object to the appearances of these lawyers appearing for the second respondent. They were, therefore, deemed to have waived their right to complain about non-filing of memorandum of appearance, non-appearance and no objection by the second respondent. She cited Total (Nig) Plc v. V.I.I.R.A. (2004) 7 NWLR (pt. 873) 446, 464.
She contended that, on the strength of the authority of Total’s case (supra), the appellants had waived their rights to complain about the non filing of the memorandum of Appearance by the second respondent. She urged the court to hold that JAMB v. Orji (supra) and Sodipo v. Ogidan (supra) were inapplicable to the instant case.
She urged the court to dismiss the appeal on the following grounds:
(a) No method of starting a court process, whether it is by Originating Summons; Writ of Summons; Prerogative writs or Petitions, is exempted from the pre-condition of the issuance and service of a pre-action notice on the defendant if there is a statutory requirement to that effect;
(b) Non-filing of a memorandum of appearance was cured by the physical appearances of the party in default. Above all, it was an irregularity which did not go into the merit of the case and the plaintiffs were deemed to have waived their right to complain by their acceptance of the physical appearances on behalf of the second respondent.
RESOLUTION OF THE ISSUE
Now, the recognition of the legitimate purpose of pre-action notice as a procedural provision has an ancient ancestry, dating back to the decision of WACA in Ngiligila v. Tribal Authority, Nongowa Chiefdom (1953) 14 WACA 395, 327. The common thread that runs through such provisions is their imperative vocabulary, whose effect is to debar a court from entertaining a suit instituted without compliance with their provision.
The authorities are many, see, for example, section 46(1) of the University of Ife (now OAU) Act, which was considered in FCA Ltd v. OAU (1993) 5 NWLR 171; Section 29(2) of the Federal Environmental Protection Act, which was considered in Mobil Nig Unltd v. LASEPA (2003) 5 WRN 1; section 11 (2) (now 12(2) of the NNPC Act considered in Amadi v. NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; section 97 of the NPA Act – Umukoro v. NPA (1997) 4 NWLR (pt. 502) 656.
Others include Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100; section 15(1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 of 1988 of Kwara State, Atolagbe v. Awuni (1997) 7 SCNJ 4; section 11(2) of the State proceedings Law Cap 131 Vol.4 (Laws of Anambra State), Anambra State Government v. Nwankwo (1995) 9 NWLR (pt. 418) 247; NPC – Nig Cement Corporation Ltd v. NRC (1992) NWLR (pt. 220) 747.
Essentially, there are two main limbs that constitute the essential pre-conditions consecrated in the above provisions. In this appeal, only the first limb is in contention. This first limb commences with the opening phrase: “No suit shall be commenced.” The interpretation of this limb has yielded divergent responses from senior counsel for the appellant and respondents. As shown above, Babajide Koku, SAN, for the appellant, canvassed the view that judicial review proceedings are exempted from the ambit of section 95(supra).
His authority is the decision of the Enugu Division of this court in Ezenwa v. Bestway Garments (supra). We shall return to the propriety of the lower court’s reliance on the above case later in this judgment. For now, we intend to resolve the divergent contentions with regard to the opening phrase above. As noted earlier, the opening sentence commences with the phrase “No suit…” The net effect of Mr. Koku, submission is that the provision applies to suits other than judicial review proceedings. Is this view correct?
The word “suit” was first used in the Fourteenth Century. Its lexical origin is traceable to the Middle English word “sute, seute,” words which traced their roots to the Anglo-French word “siute,” which itself derived from the Vulgar Latin “sequita,” the feminine form of “sequitus.” It means “an action or process in a court for the recovery of a right or claim”. Its synonyms include “action,” “proceeding,” “lawsuit,” Merriam-Webster, The New Webster’s Dictionary of The English Language (International Edition) 755. It has also been defined as “any proceeding by a party or parties against another in a court of law,” B. A. Garner, Black’s Law Dictionary (Eight Edition) (MN: West Publishing Co. 2004) 1475.
From the above lexical usages, we entertain no doubt that the word “suit” in the above provision embraces any proceeding in a court by a party against another party. It, therefore, embraces judicial review proceedings such as the proceedings before the lower court which culminated to this appeal. In effect, the above section, in our view, embraces proceedings for judicial review. We, thus, hold that it prohibits the commencement of all suits whatsoever, FCA Ltd v. OAU (supra); Amadi v. NNPC pages 73 – 74. In effect, this limb imposes a mandatory requirement. It imports an obligation. It means that no suit could be commenced against the first respondent until the after the expiry of one month.
We are emboldened in this view by the avalanche of decisions handed down by the apex court on provisions of other enactments in pari materia with the above provision, Atolagbe v. Awuni (supra); Amadi v. NNPC (supra); Nigercare Dev. Co. Ltd v. Adamawa State Water Board and Ors (supra); Bakare v. NRC (supra); Fawehinmi Construction Co. Ltd v. Obafemi Awolowo University (supra); Chief Osagie II v. Chief Ofor (supra) etc. In all, Mr. Koku, SAN, with due respect, could not have been right that the proceedings before the lower court (judicial review proceedings) were not contemplated by the above blanket opening phrase.
That is not all. The learned senior counsel for the appellant, Koku, SAN, equally, contended that the pronouncements by the Supreme Court that the non issuance and service of pre-action notice prohibit the commencement of all suits whatsoever would only apply where the suit was commenced by way of a Writ of Summons and not by way of judicial review for an order of certiorari. Again, with respect, this view is, manifestly, unsupportable. As shown above, the word “suit” embraces “any proceeding by a party or parties against another in a court of law,” B. A. Garner , Black’s Law Dictionary supra). Above all, this lexical definition of the word has received the endorsement of the apex court in the cases cited above.
Learned senior counsel would appear to be under the impression that the lower court had the option of glossing over the above decisions of the apex court in favour of the decision in Ezenwa v. Bestway (supra). The simple answer to this is that, confronted with an overawing body of decisions from the highest court in Nigeria, the lower court would have fallen into a grave error if it had opted to follow the decision in Ezenwa v. Bestway (supra). It is, we believe, an elementary proposition that the Supreme Court is at the apex of the: judicial hierarchy in Nigeria. Thus, irrespective of the reasoning of any other court, the lower court was under obligation to follow the above decisions of the apex court.
The said decision in Ezenwa v. Bestway (supra) was reported in 1999. Before then, a host of Supreme Court decisions had settled this question in favour of the view that the expression “no suit” covers all suits and whatever causes of action, Umukoro v. NPA (1997); Barclays Bank v. CCB (1996); Owena Bank of Nig Plc (1997); Atolagbe v. Awuni (1997); Osagie 11 v. Ofor (1998); FCO v. OAU (1998) etc.
The lower court was, therefore, duty-bound, in strict observance of the doctrine of stare decisis to follow the above decisions of the apex court and not the contrary in Ezenwa v. Best way (supra). We, therefore, hold that the lower court’s posture is unimpeachable. We resolve this issue against the appellant.
There are two main complaints in issue two. In the first place, counsel contended that the lower court was wrong in striking out the entire suit when there was no requirement for the issuance of pre-action notice to the second respondent. This complaint, in our view, is well-taken. In Mobil v. Lasepa (2003) 1 MJSC 112, 129, paragraphs D – F, Ayoola, JSC took the firm view 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.
As the second respondent, the Attorney General of the Federation, does not enjoy such a protection; he could not claim that he was not subject to the jurisdiction of the lower court. In effect, the court was in error when it struck out the case even against the second respondent. Only the first respondent was entitled to such a beneficent order.
However, in our view, the court was in the cherished company of the apex court when it granted the relief sought in favour of the first respondent. The Supreme Court, magisterially, intoned in Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76 that: “…the said provision of ‘No suit shall be commenced’ prohibits the commencement of all suits whatsoever…” The position, therefore, is that no suit shall be commenced which does not comply with the condition precedent ordained in the Act, Nigercare Dev. Co. v. Adamawo (supra).
Thus, the lower court was right in granting the relief presented to it. The second complaint in the said second issue that the second respondent did not enter appearance need not delay us here. As learned counsel for the second respondent, rightly, contended the lower court did not express any view on this question since it was not canvassed before it.
We, entirely, agree that, being a fresh issue, leave ought to have been sought and obtained before raising it in this appeal, western steel works Ltd. v. Iron and Steel Workers Union of Nigeria (supra); Onyesoh v. Nnebedum (supra); Olowosago v. Adebayo (supra).
In all, this appeal, partially, succeeds only in relation to the second issue. We have no hesitation in entering an order dismissing the complaint in the first issue. For the avoidance of any doubt, this appeal is allowed only in respect of the second issue. We find the complaint in the first issue unmeritorious. We dismiss that complaint with costs assessed and fixed at N30,000 in favour of the first respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the leading Judgment delivered by my brother CHIMA CENTUS NWEZE J.C.A.
I agree with his opinion and conclusion.
I abide by the consequential order as to costs assessed at N30,000 in favour of the 1st Respondent.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading before now, the judgment prepared by my learned brother NWEZE, J.C.A., in which I fully concur with his reasoning and conclusions.
This appeal partially succeeds only in relation to the second issue. The complaint in the first issue is unmeritorious, and I also dismiss that complaint.
I abide by the order of costs.
Appearances
Babajide Koku, SAN with him, Biola Ogundare (Mrs.);For Appellant
AND
Emeka Ngige, SAN with him Obiora Atuegwu Egwuatu and K. Ojukwu, for the first respondent;
U. Nwadialor – for the second respondentFor Respondent
