Chief Zion Nwadike & Ors V. Awka South Local Government (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED L. TSAMIYA, J.C.A.
This is an appeal against the judgment of the Federal High Court sitting in Kaduna in suit No. FHC/KD/CP/27/03 delivered by A.M. Liman J. on 9th July, 2004. It was the case of the applicant in the court below (now respondent) that he was appointed the Chief Executive Officer of the defendant for a period of 4 years in 1996. That on completion of his tenure, the President of the Federal Republic of Nigeria reappointed him for another tenure of 4 years. He admits that the supervisory Ministry of the defendant is the Federal Ministry of Transport headed by the Honourable Minister for Transport. The facts further disclose that the respondent had problems with one Alhaji Isa Yuguda who threatened to remove him from office. At a stage, he was, with the approval of the President of the Federal Republic of Nigeria retired from service on ground of public interest on 20th May, 2002. He petitioned the Head of Service of the Federation who directed the defendant to continue to pay his salaries, allow him the use of his official car and residence pending the determination of his petition. The appellant however felt otherwise. That although the said letter from the Head of Service was served on it, it posits that it takes directives from the Federal Ministry of Transport which is its supervisory organ and not the Head of Service of the Federation. The appellant then instituted a case at the Rent Tribunal Kaduna against the Respondent and he was ejected by the order of the court.
In view of the prevailing circumstance, the respondent who was the applicant in the court below initiated the suit against the appellant who was the respondent therein by a prerogative writ seeking the following reliefs:-
(a) A declaration that the applicant is entitled to the continuous payment of his monthly salary and the use of his official car and residence as directed by the Head of Service of the Federation vide a letter dated 5/7/2002 with Ref. No. PSO//PS/99/009/VOL.1/108 to the respondent pending the determination of the applicant’s complaint of unlawful and premature retirement from service.
(b) An order of mandamus compelling the respondent to continue paying the applicant’s monthly salary in the total sum of N139,098,66 (consisting of (a) basis monthly salary N119,282.66 (b) Transport Allowance N15,660.00 (c) Domestic Servant Allowance N2,800.00, Meal subsidy N1,350.00 from the month of September 2002 and allow the applicant the use of his official vehicle and residence until the resolution of the applicant’s case as directed by the Head of Service of the Federation in a letter dated 5/7/2002 with Ref. No. PSO/PS/99/009/VOL.I/108 to the respondent.
(c) An order of mandatory injunction directing the respondent to restore and allow the applicant’s unimpeded use of his official residence in the respondent’s premises pending the resolution of the applicant’s case by the office of the Head of Service of the Federation.
(d) An order directing the respondent to account for all applicant’s properties removed from the applicant’s official residence at the instance of the respondent by agents/staff of the respondent.
(e) Exemplary damages of One Million-Naira (1m) against the respondent for unlawful eviction of the applicant from his official residence and denial of his monthly salaries since September, 2002.”
The respondent as applicant at the court below filed a 42 paragraphs affidavit in support of the writ. The respondent (now appellant) filed a five paragraph counter affidavit and a six paragraph further and better counter affidavit in opposition. The learned trial judge took arguments from the applicant’s counsel on 22/1/04 and adjourned the matter to 5th February 2004 for continuation of hearing. There is nothing on record to show what happened thereafter until 9th July, 2004 when the learned trial judge gave a short, one paragraph ruling on the matter granting all the reliefs sought by the applicant and reserving details of the judgment to a date for which parties were to be notified.
Dissatisfied with the stance of the learned trial judge, the appellant has appealed to this court. He filed notice of appeal on 30/9/04 containing five grounds of appeal and on 24/11/05, this court granted leave to the appellant to file and argue one additional ground of appeal.
The appellant filed his brief of argument on 29/11/05 which brief contains four issues formulated for the determination of the appeal. The issues are as follows:-
(1) Whether the purported judgment delivered by the lower court on 9/7/2004 is not a nullity thus rendering the entire proceedings null and void?
(2) Whether the entire proceedings and judgment of the lower court is not vitiated by the fact that the appellant was neither heard at all nor given an opportunity of being heard.
(3) Was the jurisdiction of the lower court not voided by the mode of commencement of the action?
(4) Whether there was any basis in law for the award of N1,000,000.00 as exemplary damages.
On receipt of the appellant’s brief, the respondent who was out of time applied for and obtained extension of time to file his brief which was deemed filed by this court on 15/5/06. The respondent also couched four issues for the determination of the appeal. These are:-
(1) Whether the judgment of a court would be a nullity for the fact that reasons for reaching its conclusions were not given.
(2) Whether a party that has been accorded a reasonable opportunity to being heard and for no satisfactory explanation fails or neglects to do that which he ought to do, can be heard to complain of lack of fair hearing.
(3) Whether the jurisdiction of the trial court was eroded owing to the mode of commencing the action before it by the respondent.
(4) Whether the learned trial judge was right to have awarded N1,000,000.00 to the respondent as exemplary damages.
Also, on 7/2/06, the respondent filed notice of preliminary objection pursuant to Order 3 rules 2 and 15 of the Rules of this Court 2002. As it is the practice in this court and I think it is reasonable to do so, I intend to resolve the issues raised in the preliminary objection before going to the main appeal.
PRELIMINARY OBJECTION:
As already stated, the respondent filed notice of preliminary objection on 7/2/06 as follows:-
(1) That ground 2 of the amended notice of appeal dated 24th November 2005 is incompetent for the following reasons:
(a) The complaint contained therein was never considered nor pronounced upon by the trial judge.
(b) That an appeal can only lie against what was decided by the lower court and not against what was not decided.
(c) That ground 2 did not challenge the ratio decidendi of the judgment and ruling being appealed against.
(d) The particulars of the said ground of appeal are argumentative and narrative in nature.
(2) That ground 4 of the amended notice of appeal dated 24th November, 2005 is incompetent for the following reasons viz:
(a) The said ground of appeal alleges error in law and fact at the same time contrary to the rules of the Court of Appeal 2002 (as amended).
(b) Particular (a) of the said ground of appeal is argumentative and narrative in nature.
RELIEF SOUGHT
- That grounds 2 and 4 of the amended notice of appeal date 24th November, 2005, be struck out.
- That all arguments canvassed by the appellant in his brief relating to grounds 2 and 4 be expunged and/or discountenanced.
The arguments in respect of the preliminary objection are contained on pages 3 to 5 of the respondent’s brief of argument. It is the contention of the learned counsel for the respondent that ground 2 of the amended notice of appeal dated 24/11/05 is not based on the decision or ruling of the lower court and any ground of appeal that is not based on what was decided upon by the lower court is incompetent and should be struck out. He cited and relied on the case of Igbinovia v. UBTH (2000) 8 NWLR (Pt. 667) 53 at 65-66 paragraphs G – C. Also that the respondent merely approached the lower court by way of application for mandamus pursuant to the provisions of Order 47 of the Federal High Court (Civil procedure) Rules 2000 to enforce judicially the directives contained in the letter issued by the office of the Head of Service of the Federation to the appellant dated 5/7/02 as contained at p. 29 of the record of proceedings and that the case had nothing to do with the determination of the merit or demerit of his purported retirement from the service of the appellant. He then cited the cases of Akanbi v. Raji (1998) 12 NWLR (Pt. 578) p. 360 and HNB Ltd v. Gifts Unique Nig. Ltd. (2004) 15 NWLR (Pt. 896) p. 408.
Finally on that, he urged the court to hold that ground two is argumentative and narrative in nature and ought to be struck out. He relied on the case of Ezewusim v. Okaro (1993) 5 NWLR (Pt. 294) p. 478 at 491 paragraphs C – D.
As regards ground 4, learned counsel submitted that a ground of appeal which alleges error in law and fact at the same time is incompetent and liable to be stuck out and that particular (a) thereof which is argumentative and narrative should also be struck out. He referred to these authorities viz:-
- Mercantile Bank of Nigeria Plc v. Nwobado (2000) 3 NWLR (Pt. 648) 297 at 315 paragraphs A – C
- Igbinovia v. UBTH (2000) 8 NWLR (Pt. 667) 53 at 65 paragraphs D – F
- Aniekwe v. Okereke (1996) 6 NWLR (Pt. 452) 60 at 71 paragraphs A – D.
In conclusion, he submitted that once one or more particulars of a ground of appeal are rendered bad, the remaining particulars serve no useful purpose as the court will not excise bad ones buttressing it with the case of Stirling Civil Engineering Nig. Ltd. v. Yahaya (2002) 2 NWLR (Pt. 750) p. 1 at 15 – 16 paragraphs H – G. He urged the court to uphold the preliminary objection. The appellant’s reply to the preliminary objection is contained in his reply brief filed on 15/5/06. The learned counsel for the appellant submitted that the mode of commencement of an action is a pre-requisite condition for the court entertaining same to assume jurisdiction. That once the mode of commencement is wrong, it is fatal to the court’s jurisdiction and that the proceedings and judgment conducted is rendered a nullity. He cited Madukolu v. Nkemdilim (1962) 2 SCNLR, 341 and Ngige v. Achukwu (2005) All FWLR (Pt.247) 1545 at 1563 D – E; (2005) 2 NWLR (Pt. 909) 123.
Also, that since ground 2 complains about the competence of the originating process, it is a matter that borders on the jurisdiction of the court which can be raised at any time and at any stage of the proceedings. He referred to Alao v. Osinowo (2005) All FWLR (Pt. 250) 190 a 197 F – G and 201 A – C.
Furthermore, that the particulars of ground 2 are neither narrative nor argumentative but point to the specific errors complained about.
As regards ground 4, he opined that a ground of appeal that alleges both errors or misdirection in law and on facts is not incompetent going by the decision of the apex court in Alhaji Abdulrahman Akanbi v. Mallam Wasir Salawu & Anr. (2003) 6 SCNJ 246 at 254; (2003) 13 NWLR (Pt. 838) 637. He urged the court to discountenance the authorities cited by the respondent on the issue in view of the apex court’s decision referred above.
On particular (a) of the 4th ground of appeal, he urged the court to hold that it is not argumentative. On the whole, he urged the court to dismiss the preliminary objection.
Now for ease of reference, I intend to set out herein the two grounds of appeal complained about and their particulars: GROUNDS 2
“The learned trial judge Hon. Liman J. erred fundamentally in law when he assumed jurisdiction in an employer-employee matter through the avenue of a prerogative order of mandamus and to that extent the entire judgment and proceedings were a nullity”.
PARTICULARS OF ERROR
a. The crux of the matter adjudicated upon by the Federal High Court, Kaduna arose from a determination (lawful or otherwise) of the employment of the respondent.
b. Ab initio, the lower court lacked jurisdiction to grant the relief’s it eventually granted to the respondent, as they were relief commenced by prerogative order of mandamus
c. The dispute between the parties, being one of master-servant, ought to have been commenced by writ of summons.
GROUND4
The lower court erred in law and on the facts when it ordered the appellant to continue to pay the respondent’s monthly salary from September 2002, allows the respondent the use of his official vehicle and residence until the resolution of the respondent’s case by the office of the Head of Service of the Federation.
PARTICULARS:
a. These finding/orders are perverse and erroneous as it was apparent from the proceedings, paragraphs 4, 5, 14 – 22 of the respondent’s affidavit before the lower court and exhibit B and E attached thereto, the appellant’s response vide its counter affidavit that appellant had nothing to do with the appointment of the respondent.
b. The presidency through the Ministry of Transport hired, renewed and eventually terminates the appointment of the respondent without recourse to the appellant which appointment had nothing to do with nor was it regulated by the Head of Service of the Federation.
c. The Presidency and the Ministry of Transport from whom appellant takes directives were never made parties to the action.”
Having done that, let me straightaway say that this preliminary objection is an exercise in the vicinity of technicalities which we have in a number of pronouncements in this court made it clear that it should not be magnified. Rather, we have always endeavoured not to resolve matters on the basis of technicalities. Courts are established not to relish in technicalities but to do substantial justice. See Erisi v. Idika (1987) 1 All NLR 382; (1987) 4 NWLR (Pt. 66) 503. Surakatu v. Nigeria Housing Development Society Ltd. & Anor (1981) 4 SC 26.
Be that as it may, let me give a short consideration to the issues raised in the objection.
Order 3, rule 2 (3) of the Court of Appeal Rules 2002 now Order 6 rule 2 (3) of Court of Appeal Rules 2007 states that a notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. The apex court had stated clearly in Uzor Idika & Ors v. Ndulwe Erisi & Ors (1988) 2 NWLR (Pt. 78) 563 that a ground of appeal is intended to be a concise statement of the head of complaint of an appellant, consequently, it is contrary to the rules of court to argue a party’s case first in his grounds of appeal and later in his brief and oral argument. See also Ezewusim v. Okoro (supra).
Now, applying this to ground 2 of the grounds of appeal, it seems to me that the said ground is not only concise but also straight to the point. I am therefore unable to pitch my tent with the learned counsel for the respondent/ applicant in the mater. There is no argument or narrative as submitted by him. Also, the said ground of appeal complains about the originating process which is by way of originating summons and affidavit in support which was used to commence the action in the court below. In other words, the ground is attacking the jurisdiction the lower court. Although the issue of jurisdiction was not raised at the lower court, there are a plethora of authorities both in this court and the apex court, that issue of jurisdiction can be raised at any time and even on appeal as in this case. See Alao v. Osinowo (2005) All FWLR (Pt. 250) 190, Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850), 423. Ground 2 and its particulars are in my opinion, competent.
The applicant’s grouse about ground 4 is that it alleges both error in law and fact at the same time. The cases cited by the applicant on the matter agree that once a ground of appeal alleges error both in law and fact, it should be declared incompetent. But as it stands, it seems that is not the end of the matter. In Alhaji Abudulrahman Akanbi v. Mallam Wasiu Salawa & Ors (2003) 6 S.C.N.J. 246 at 254; (2003) 13 NWLR (Pt. 838) 637, the apex court per Uwaifo JSC, held as follows: “I need not go into further discussion of the consequences of framing a ground of appeal as a misdirection in law or an error in law and on the fact other than to say that such framing does not ipso facto make the ground of appeal incompetent. That would normally raise a ground of mixed law and facts, which is not unusual in many appeals. But it ought to be carefully examined, as any other ground of appeal, along with its particulars in order to determine its purport. So long as it is not capable of misleading the other party, and the court is satisfied that its meaning can be reasonably elicited, it cannot be considered objectionable……………… The court below was right in holding that grounds 4 and 6 of the grounds of appeal filed before it were competent even though they complained of a misdirection in law and on the facts”.
What this means is that such a ground of appeal can only be struck out if it is misleading and devoid of meaning. But as long as its meaning can be reasonably elicited, it ought not be declared incompetent.
The applicant in the instant case has not said he is misled or does not understand the meaning of the ground of appeal. I have also considered ground 4 and it seems to me a straightforward statement which should be allowed to stand. The Supreme Court has held that the important consideration in the determination of the nature of ground of appeal is not the form of the ground but the question it raises. See M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206. Such question must of necessity be clear, cogent and capable of reasonable meaning to be elicited therefrom.
On the whole, I see no merit in the preliminary objection as I hold that both grounds 2 & 4 and their particulars are competent for the purpose of this appeal.
I now proceed to determine this appeal on the issues placed before this court. As already highlighted above, each party formulated four issues and they are in all fours. It seems to me that this appeal can effectively be determined on the 1st issue of the appellant which is also the same with respondent’s first issue.
It was submitted that on behalf of the appellant on the first issue that the ruling or judgment of Liman J. of the Federal High Court, Kaduna is a nullity in that the purported judgment violates every known principle for delivering a valid judgment. That the learned trial judge merely gave his conclusion and final orders and adjourned the matter to a later date for reasons and details and that till date, the said reasons and details of the said judgment have not been given. That the lower court has no constitutional, statutory or inherent powers to deliver its judgment in summary and adjourn for reasons and details on a later date. Furthermore, he submitted that only the Supreme Court has such powers.
Contending further, learned appellant’s counsel submitted that the delivery of judgment by the Federal High Court is regulated by Order 42 rules I & 2 of the Federal High Court (Civil Procedure) Rules 2000 and nowhere does it give the lower court powers to defer details of its judgment. Learned counsel urged the court to allow this appeal on this issue relying on the case of Alhaji Taye Oyeleke v. Prof MurielAyodeji Oyediran (2006) 1 NWLR (Pt.962) 500, (2006) All FWLR (Pt. 313), 140. In his reply brief, the appellant refutted the claim by the respondent’s counsel in his brief that the learned trial judge had inherent power to defer the reasons for his judgment.
He cited these cases: –
- Udengwu v. Uzuegbu (2003) 7 S.C.N.J. 145; (2003) 13 NWLR (Pt. 836) 136.
- Polycarp Ojogbue v. Ajie Nnubia (1972) 1 All N.L.R.(Pt. 2) 226
- Ogolo v. Ogolo (1997) 7 NWLR (Pt. 512) 310
In reply, the learned counsel for the respondent submitted that it is not in all cases where the trial court has failed to give reasons for its decision will automatically render such decision a nullity. He cited the case of Eyo v. Inyang (2001) 8 NWLR (Pt. 715) 304. Learned counsel urged this court to examine the record of proceedings and arrive at a correct decision as suggested in Eyo’s case (supra).
Furthermore, that the lower court, by virtue of S.6(6) of 1999 Constitution of the Federal Republic of Nigeria can defer reasons for its decision by invoking its inherent jurisdiction. He referred to Fawehimni v. Akilu (1989) 3 NWLR (Pt.112) 643. He then urged the court to resolve this issue in favour of the respondent.
Before I venture to resolve the issue in contention, I deem it fit and desirable to recast the short ruling of the court below for a better appraisal of the issue: –
“RULING
I have examined the documents filed and the legal arguments of both counsels. It is instructive that counsel for the respondent agreed much that the decision of the secretary to the Government could represent the decision of the presidency. The claim before this court is not challenging the retirement of the applicant. But having petitioned the president, consequent upon which the Secretary of the Government of the Federation directed that pending determination of the petition, the applicant shall be entitled to his salaries, allowances and other perquisites of office.
This was served on the 1st respondent but it ignored and the Ministry proceeded to counter the directive of the Secretary to the Government. All the statute and legal notices cited do not seem to vest in the minister the power to countermand the directive of the Secretary to the Government. In circumstances, I hold that the applicant is entitled to all the relief’s sought and it is accordingly granted as prayed – details of the judgment is reserved to a date for which parties will be notified.
Signed:
A. M. Liman
9/07/2004”
Let me quickly add that up till this very moment of writing this judgment, there is nothing before this court to show that the learned trial judge has fixed any date for the details/reasons for his judgment. The question is whether the above ruling was to be the judgment of the court below or an intention of the court of what the judgment would be on the date to be fixed. By S.294(1) of 1999 Constitution of Federal Republic of Nigeria: –
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
I need to emphasize here that the judgment contemplated by S.294(1) of 1999 Constitution quoted above is a full judgment of the court and not half or a summary of same. The judgment of a high court is never given by instalments and there is nothing in the Federal High Court (Civil Procedure) Rules 2000 to suggest either expressly or by implication, that the Federal High Court is allowed to take decision brevi manu and later give its reason or reasons for the said decision. See S.D.C. Cementation (Nig.) Ltd. v. Nagel & Co. Ltd. (2003) 4 NWLR (Pt. 811) 611; Oyeleke v. Oyediran (2006) All FWLR (Pt. 313) 140, (2006) 1 NWLR (Pt.962) 500.
It was argued by the learned counsel for the respondent that although there is no express power conferred on the lower court to defer reasons for his judgment to a later date, the court was right to draw from its inherent power to accommodate what it did. With due respect, this is an erroneous argument.
No court has an inherent power to do a thing which it is not constitutionally or statutorily empowered. Inherent power of the court is that which is not expressly spelt out by the constitution, or in any statute or rule of court but which can of necessity, be invoked by any court of record to supplement its express jurisdiction or powers conferred on it. No court can add to or extend its jurisdiction where no jurisdiction has been conferred. Inherent power only serves to lubricate the statutory jurisdiction to make it work. See Fawehinmi v. Akilu (1989) 3 NWLR (Pt. 112) 643.
The court below did not in my opinion possess any inherent power to decide the matter brevi manu and then adjourn for reasons.
After taking a cursory look at the one paragraph and short ruling which I have recast above, can it be said that it qualifies to be called judgment? The answer with due respect is in the negative. I agree that judgment writing is a matter of style of the individual judges. But there are certain essential and mandatory components which a good judgment must contain. I refer to the case of Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 451 Per Oputa J.S.C.
“The proper approach for any trial court is to first set out the claim or claims, then the pleadings, then the issues arising from those pleadings. Having decided on the issues in dispute, the trial judge will then consider the evidence in proof of each issue; then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this, the trial judge will then record his logical and consequential findings of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of facts.”
In the instant case, the steps enunciated above are completely absent. See also Ogolo v. Ogolo (supra), Igwe v. Alvan Ikoku College of Education, Owerri. (1994) 8 NWLR (Pt. 363) 459, Adeyeno v. Arokopo (1988) 2 NWLR (Pt. 79) 703.
It is sad that learned trial judge not only delivered to the parties an intentional judgment on 9th July, 2004 but also failed to invite them for the final judgment over three years thereafter. From the ruling of the learned trial judge, my view is that he made his intentions about the judgment known to the parties hoping to invite them on a later date for the judgment proper but it was not to be. There is no how that ruling can be taken to be the judgment envisaged under S.294(1) of the 1999 Constitution of the Federal Republic of Nigeria. It is no judgment at all since it lacks even the elementary requisites of a good judgment. I hold the view that the learned trial judge erred substantially by failing to deliver to the parties a judgment known to law. I hold that the one paragraph ruling of the learned trial judge is a nullity not being in conformity with laid down and known principles of a good judgment. Having held the judgment to be a nullity on this issue, an exercise into the other issues becomes academic and unnecessary.
This appeal is hereby allowed and the suit No. FHC/KD/CP/27/2002 remitted back to the Chief Judge of the Federal High Court for re-assignment for trial de-novo by any other judge of that court other than A.M. Liman J. I award N20,000.00 costs to the appellant.
Other Citations: (2008)LCN/2683(CA)
