Chief E. A. Nwagu V. Prof. Uba Nwuba (2009)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the ruling of A. Lewis Allagoa. J. of the Federal High Court Enugu delivered on the 21st November, 2007 in Suit No. FHC/EN/CS/262/2002 – CHIEF E.A. NWAGU v. PROFESSOR UBA NWUBA & THE FEDERAL POLYTECHNIC OKO. In the court below, the Appellant, a Chief Stores and supplies Officer with the 2nd Respondent and who on the 30th August, 2002 was purportedly suspended from duty by the 1st Respondent, prayed the court as plaintiff for the following as per paragraph 20 of his statement of claim dated 19th November, 2002 and filed on the 21st November, 2002 and contained at page 9 of the Record of Appeal –
(A) A declaration of court that the 1st defendant not having been properly appointed as the Rector of the 2nd defendant can not act or purport to act as such Rector of the 2nd defendant whether to purport to suspend or dismiss the plaintiff from her services.
(B) A further declaration of court that the plaintiff being a Senior Staff of the 2nd defendant can only be suspended or dismissed by the defendants in strict compliance with the Federal Polytechnic Act Cap. 139 Laws of the Federation 1990.
(C) A declaration of court that even if the 1st defendant had the legal capacity to discipline or otherwise deal with the plaintiff that all his actions and that of his cohorts/agents in this matter have been taken or done contrary to the aforesaid Federal Polytechnic Act and also contrary to the tenets of natural justice to wit fair hearing and therefore a complete nullity.
(D) A mandatory order of injunction compelling the defendants to restore to the plaintiff forthwith all the rights, privileges and perquisites appertaining to or relating to his position of Chief Stores and Supplies Officer of the 2nd defendant from the date of his purported suspension from the 2nd defendant on 30th August, 2002.
Pleadings having been filed were exchanged between the parties.
Subsequently the Appellant as Plaintiff by motion on notice dated the 23rd July, 2007 and filed on the 26th July, 2007 which is supported by a sixteen paragraph affidavit, prayed the court for-
(A) An order of the Honourable Court for the 2nd Defendant to pay to the plaintiff half of his monthly salary from August 2002 till the present in accordance with the provisions of section 12 (4) of the Federal Polytechnics Act 1990 pending the hearing and determination of this suit.
(B) And for such order or orders as the Honourable Court may deem fit and proper to make in the circumstances.
Written addresses were by leave of court submitted by counsel for the parties. However before the hearing of the application, Mr. S.O. Nworie sought the leave of court to amend relief (A) as contained on the motion paper by deleting “August 2002” and replacing same with “June 2003.” Counsel also asked that written addresses be allowed to reflect the amendment if granted. H.A. Ejim counsel for the Respondent said that the amendment sought to be made is substantial and if the court was minded to grant same he would be asking for costs. The learned trial Judge after listening to both counsel granted the amendment sought with N10,000.00 costs to the Respondent and ordered the filing of fresh written arguments of the motion following the circumstance of the amendment. This position is made clear by recourse to pages 331 – 332 of the Record of Appeal. Written addresses were on the 22nd October, 2007 adopted by the parties and in its ruling of the 21st November, 2007, the learned Trial Judge dismissed the application as lacking in merit. It is this interlocutory ruling on the application that is the subject matter of this appeal. Being an interlocutory ruling the Appellant sought for leave to appeal and extension of time to file Notice of Appeal. This application was granted by the Court of Appeal on the 9th April, 2008, the Appellant being allowed 7 days within which to file his Notice and Grounds of Appeal. This position is borne out by recourse to page 315 of the Record of Appeal. The Appellant’s Notice of Appeal dated 11th April, 2008 and filed on the 14th April, 2008 is contained at pages 311- 314. The Grounds of Appeal as contained in the Notice of Appeal but shorn of particulars are reproduced below as follows:
GROUND ONE – The trial court was wrong when it held that “in all the circumstances the fact shows that the plaintiff had received his half salary during the time of his suspension in accordance with section 12 (4) of the Federal Polytechnic Act 1990.”
GROUND TWO – The trial court was wrong when it held that “…….Following this statistics, it is clear that as at the time of the dismissal this suit was not pending in court having been struck out at the time……..”
GROUND THREE – The trial court was wrong when in an interlocutory application it delves (sic) into the determination of the substantive issue for trial.
GROUND FOUR – The judgment is against the weight of evidence.
Briefs of argument were filed, adopted and relied upon by counsel for the parties.
The Appellant’s brief of argument is dated the 22nd May, 2008 and was filed on the 26th May, 2008, while the reply Brief is dated the 27th November, 2008 and was filed on the 28th November, 2008. From the Appellant’s Brief of argument is formulated this sole issue for the determination of the court of Appeal –
“Whether in all the circumstances of this case, was the court below right in dismissing the Plaintiff/Applicant/Appellant’s motion dated 23rd July, 2007 and filed on 26th July, 2007.”
Arguments having been canvassed in the brief which are dealt with in this write-up, Appellant urged this court to allow the appeal. The Respondent’s brief of argument is dated the 9th October, 2008 and deemed filed on the 18th November, 2008 pursuant to the grant of a motion on notice dated the 13th October, 2008 and filed same day for an order extending time within which the Respondents be allowed to file their brief of argument and to deem the said brief of argument already filed as having been duly filed. In the said brief of argument, the Respondent distilled the following sole issue for the determination of this court-
“Was Suit No FHC/EN/CS/262/2002 which had been struck out by the court on the 27th March, 2003 still pending and or subsisting so as to render the dismissal of the Appellant from the services of the 2nd Respondent on 11/7/2003 ineffective.”
Arguments have been canvassed in the Respondents Brief which are like the Appellant’s arguments dealt with in this judgment. Respondent urged this court to dismiss the appeal and affirm the ruling of the court below.
The issues distilled by the parties in their respective briefs of argument through variously couched have one common theme and which is more aptly put forward by the Respondent – “Was suit No.FHC/EN/CS/262/2002 which had been struck out by the court on the 27th March, 2003 still pending and or subsisting so as to render the dismissal of the Appellant from the services of the 2nd Respondent on the 11th July, 2003 ineffective.” This is how the Appellant approached this issue in paragraph 2.01 on page 4 of the Appellant’s Brief of argument. “The crucial issue thrown up in this appeal is whether this Suit was dead as at the time when the Defendants/Respondents purportedly dismissed the Appellant vide the letter of 11th July, 2003.” Appellant submitted that in considering whether the suit was dead on account of the striking out the court below ought to have also taken into consideration the events that took place after the striking out of the suit and preceding the purported dismissal of the Appellant. In this regard reference was made to the ruling of Archibong J. with respect to the Appellant’s motion for relistment dated 25th March, 2003 and filed on the 31st March, 2003 where the learned trial Judge had said thus:
“Your Suit is misconceived as the cause of action you now advance is buried in other questions. You had better reformulated (sic) your processes particularly your statement of claims. Leave to relist your suit as presently formulated denied.”
Appellant went further to submit that from this ruling of Archibong J. it is clear that the Appellant was expected to file further processes in this Suit by way of reformulation of the statement of claim and that the suit could not be said to be dead and that as long as the order made by Archibong J. on the 7th April, 2003 was still subsisting as at the time of the purported dismissal, it cannot be seriously contended that no further action could be taken or was contemplated to be taken on the case as at the 11th July, 2003, when the purported dismissal was contrived and the Appellant’s action was not dead. Counsel relied on KASSIM Vs. HARMAN ERBET vol. 4 1966 NSCC 44 at 45. Appellant went on further to submit that the suit was pending and merely needed an order of court to be resuscitated, and was accordingly resuscitated on the 20th June, 2005. Counsel further contended that the lower court was in error in placing reliance on the purported dismissal of the Appellant in refusing the motion as the alleged suspension and subsequent dismissal were matters that bordered on the substantive. Reliance was placed on the following cases – AKAKPO Vs. HAKEEM HABEEB (1992) 6 NWLR PART 247 PAGE 266 AT 287. SCC (NIG) LTD Vs. OUR LINE LTD. (1995) 5 NELR PART 395 page 364; SHELL PET. DEVELOPMENT CO. (NIG) LTD Vs. EDAMKUE (1998) 13 NWLR (PART 580) 123 Counsel further contended that a suit relisted dates back to the date of filing.
Accordingly the purported dismissal of the Appellant on the 11th July, 2003 was pendente lite and was clearly a substantive issue that ought not be pronounced upon by the court at the interlocutory stage. According to the Appellant a cause is said to be pending in a court of justice when any proceedings can be taken on it. He relied on the dictum of Jessel M.R. in RE CLAGETT’S ESTATE: FORHAM vs. CLAGETT (1882) 20 CH. D 673. That, counsel said is the test. “If you can take proceedings, it is pending.” Counsel submitted.
The Respondent for his part has submitted that what Archibong J. said in his ruling was at best a piece of advice to the Appellant as to how to go about his case so as to have a competent suit before the court which the Appellant was at liberty to take or reject and was certainly not an order and was not a prayer made or asked for in his motion by the Appellant and the court below not being a father chrismas could not have gone ahead to make an order for which no application had been made and that no court can go ahead to grant a prayer which has not been asked for by the appropriate party. Reliance was placed on the following cases-
ALHAJI SHEHU BAKULE Vs. TANEREWA NIGERIA LTD. (1995) 2 NWLR PART 380 page 728; KALIO Vs. KALIO (1975) 2 SC 15; EKPENYONG Vs. NYONG (1975) 5 SC 71; OKUBULE Vs. OYAGBOLA(1990) 4 NWLR PART 147, 123; OLU ROTIMI Vs. IGE (1993) 8 NWLR 311 at 257; UNION BANK OF NIGERIA Vs. CHUKWUELO CHARLES OGBO (1995) 2 NWLR PART 380 page 647 at 663 – 665, NIGERIAN HOUSING DEVELOPMENT SERVICES LTD. Vs. MUMUNI (1977) 2 sc 57 at 81. BONNY Vs. YOUGHA (1969) ALL NLR 396 at 402 UNIVERSITY OF LAGOS Vs. DADA (1971) NWLR PART 111 at 344. UNION BEVERAGES LTD Vs. M.A. OWOLABI (1988) 1 NWLR PART 68 page 128 at 129. The Respondent further submitted that the order striking out the suit on the 20th March, 2003 was not made with an express authority or a grant of liberty to relist the suit as was done in KASSIM Vs. EBERT (1966) All NLR 54 at 56.
Respondent went on further to submit that the learned trial judge never violated the principle laid down by the Supreme Court in AKAPO Vs. HAKEEM HABEEB (supra) in his ruling. All that the learned trial judge did was to make a finding as to whether the Appellant was dismissed and having so found, applied it to the application before him.
It is perhaps necessary to reproduce so much of the ruling of the learned Trial Judge commencing from the last line of page 338 to page 339 of the Record of Appeal as this appears to be the bed rock of this appeal-
“The question now is whether the Defendant/Respondent can rely on the letter of dismissal issued on the 11/07/03 to stop the payment of half salary which is statutorily due to the Applicant. The Defendant/Respondent’s defence is that as at the time of the dismissal, the matter was not pending in that it had been struck out by the trial court. The record of this Honourable Court shows that on 20/1/03, this matter was mentioned before my learned brother Hon. Justice C. Archibong and the parties were absent and the matter was adjourned to 27/3/07 and on that day only the defence H. A. Ejim was present in court, the matter was then struck out.
Subsequently this Suit was relisted by this Honourable Court as presently constituted on 20/6/05; Following this statistics, it is clear that as at the time of the dismissal on 11/07/03 as per the letter of dismissal this suit was not pending in court having been struck out at the time. In all the circumstance, the facts show that the plaintiff had received his half salary during the time of his suspension in accordance with section 12(4) of the Federal Poly Act 1990. As at the time of his dismissal this suit was not pending. The suit was only relisted during the pendency of the dismissal dated 11/07/03. This situation is the status quo ante bellum as at the time this Honourabale Court became seized of the matter. In the circumstance the applicant motion dated 23/7/07 and filed on 26/7/07 fails and is hereby dismissed.”
Heavy weather appears to have been made by the Appellant with respect to the ruling of Archibong J. of the 7th April, 2003 refusing relistment of this suit. If only from the point of emphasis I’ll like to revisit that ruling. The learned trial Judge had held as follows,
“Your suit is misconceived as the cause of action you now advance is buried in other questions. You had better re-formulated your processes particularly your statement of claims. Leave to relist your suit as presently formulated denied.”
Of this ruling the Appellant had stated inter alia in paragraph 2.03 at page 5 of his Brief of argument “It would have been clear to the Respondents that the suit was not dead going by the order of Hon. Justice C.E. Archibong As long as the order and/or ruling of Hon. Justice C.E. Archibong was still subsisting as at the time of the purported dismissal it cannot be seriously contended that no further action could be taken or was contemplated to be taken on the case as at 11/07/03 when the purported dismissal was contrived” A ruling – yes. An order? Certainly not. It is clear that the learned trial Judge was merely giving a piece of advice to counsel on possible pitfalls he should avoid especially while preparing his statement of claim before hurrying to court to present another application to relist the suit. Appellant had said, “Obviously the Appellant’s action was not dead….” Could a suit which had been struck out still at the same time be subsisting or pending? Citing Lord Jessel M.R. in ROODHAM Vs. CLAGGERT (supra) that, “A cause is said to be pending in a court of justice when any proceedings can be taken on it ” is not helpful to the Appellant’s position. Can any further proceedings be taken on a case that has been struck out unless and until it is relisted by an order of court upon an application to do so by counsel? Obviously not. The Appellant said in paragraph 2.04 at page 6 of his Brief that “the trial court itself ordered that the statement of claim be reformulated before the case could be relisted.”
The trial court never made any such order. This is a wrong premise from which Appellant’s counsel slid downhill. In any case was any such order prayed for by the Appellant? It is a trite principle of law that a court will not make an order or grant a relief which has not been asked for by a party. The authorities cited by the Respondent in his brief are to that effect and are adequate enough as an illustration of that legal principle. It is therefore the position that at the time of the dismissal of the Appellant on 11th July, 2003, the suit remained struck out and no proceeding could be taken on it.
The Appellant has submitted that the court below was in grave error in placing reliance on the purported dismissal of the Appellant in refusing the Appellant’s motion despite the court’s ruling that, “the submission of counsel (Respondent’s counsel) is more in argument of the substantive suit and in defence of justification of the suspension and subsequent dismissal and those issues are irrelevant at this stage.” Let me hasten to add that a court of Law has a duty to avoid the determination of substantive issues at the interlocutory stage. It is a trite principle of law and there is a plethora of case law on this very important subject matter. See OGUNSOLA Vs. USMAN (2003) S6 WRN SS54. MADUBUIKE Vs. MADUBUIKE (2001) 9 NWLR (PART 719) pages 698; AKAPO Vs. HAKEEM- HABEEB (1992) 6 NWLR (PART 247) 266; SHELL PET DEVELOPMENT CO. (NIG) LTD. Vs. EDAMKUE (1998) 13 NWLR (PART 580) 123. But did the learned trial judge in the court below A Lewis Allagoa J. violate this legal principle by delving into the substantive matter at an interlocutory stage of the proceedings. I think not. The learned trial Judge had to make use of material placed before him in coming to a decision on the interlocutory application dated the 23rd July, 2007 and filed on the 26th July, 2007. What was called into play at that stage was whether the Appellant was indeed dismissed and not whether the dismissal was proper or not. Were the Judge to find that the Appellant’s dismissal was proper or not proper, he would be determining at an interlocutory stage what had better be left and decided upon at the determination of the substantive suit but that was not the scenario. The learned trial Judge only found as a fact that the Appellant was dismissed by the 2nd Respondent and having so found made use of that fact in the determination of the interlocutory application before him. The sole issue for determination must be resolved in favour of the Respondents. The appeal lacks merit and is dismissed and the ruling of A. Lewis Allagoa J. in suit No. FHC/EN/CS/262/2002 delivered on the 21st November, 2007 is accordingly upheld. This matter is remitted back to the Federal High Court Enugu for continuation of hearing.
There shall be N30,000.00 costs in favour of the Respondents against the Appellant.
Other Citations: (2009)LCN/3154(CA)
