LEGALPEDIA CITATION: LER[2018]SC.228/2013
Areas Of Law:
Action, Appeal, Court, Fair Hearing, Practice And Procedure
Summary Of Facts
The Appellant, was by a letter issued by the Secretary of the Federal Judicial Service Commission compulsorily retired from service on allegations of serious misconduct which bordered on recruiting several junior staff without due clearance from the President of the Court of Appeal in breach of his earlier directive; authorizing foreign trips for some staff of the Court of Appeal without the President’s approval in contravention of the laid down procedure among others.
Following the receipt of the letter of compulsory retirement, the Appellant took out a Writ of Summons in the Federal High Court, Abuja, against the Respondent claiming amongst others a declaration that the Committee set up by the Defendant to investigate allegations of serious misconduct leveled against the Plaintiff by the President of the Court of Appeal by not informing the Plaintiff of the allegations being investigated, and by not giving the Plaintiff the opportunity to defend himself, see the evidence against him or to cross-examine the witnesses called by the Committee throughout the proceedings of the said Committee offends the principle of natural justice and has gravely violated the Plaintiffs fundamental right to a fair hearing enshrined in section 36 of Constitution of the Federal Republic of Nigeria 1999; a declaration that the retirement of the Plaintiff by the Defendant based on the report and recommendation of the Committee set up by the Defendant to investigate allegations of serious misconduct leveled against the Plaintiff by the President of the Court of Appeal is unconstitutional, unlawful, null and void and of no effect whatsoever and however.
At the end of the trial, the court granted all the Plaintiff/Appellants reliefs. The Defendant appealed against the judgement of the trial court to the Court of Appeal which set aside the decision of the trial court and entered judgement in favour of the Defendant. Aggrieved by the lower court’s decision, the Plaintiff/Appellant has filed the instant appeal.
Held
Appeal Allowed
Issues For Determination
Ø Whether the court below had jurisdiction to have entertained and determined in favour of the respondent, the question that the appellant admitted two of the allegations made against him when that issue was not placed before the trial Federal High Court for adjudication
Ø Whether on the merit, the court below was not in error in its resolution of the question that the Appellant admitted two of the allegations made against him and its effect on the entire disciplinary process of the Respondent
Ø Whether the court below was right when it held that the participation of the President of the Court of Appeal in the proceedings of the Respondent called to deliberate on the report of the committee set up to investigate allegations of serious misconduct levelled by the same President of the Court of Appeal did not amount to a breach of the rules of natural justice and therefore had no adverse effect on the said disciplinary (sic) unless the appellant can prove that a miscarriage of justice occurred as a result
Ø Whether the failure to conclude the disciplinary proceedings against the appellant within 60 days did not vitiate the entire proceedings?
Rationes
PRELIMINARY OBJECTION TO AN APPEAL- GROUND FOR FILING PRELIMINARY OBJECTION TO AN APPEAL
“This Court has laid down that preliminary objection to an appeal can be filed only when the entire notice of appeal is incompetent because when the appellate court upholds the preliminary objection the appeal will be struck out. See: Order 2 Rule 9(1) Supreme Court Rules; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; F, B. N. Ltd v. Njoku (1995) 3 NWLR (Pt. 384) 457; Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 74“. PER K.B. AKAAHS,J.S.C
PLEADINGS – AIM OF PLEADINGS
“The primary aim of pleadings is to settle issues in contention between the parties for trial and the function of the trial court is to look at the pleadings and arrive at its judgement after hearing all the evidence in support. See: Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506; Okomu Oil v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660″. PER K.B. AKAAHS,J.S.C
NEW ISSUES ON APPEAL – EFFECT OF FAILURE TO SEEK LEAVE OF COURT WHEN INTRODUCING NEW ISSUES ON APPEAL
“Where a new issue is being introduced on appeal without leave, the issue is incompetent See: Shugaba v. Union Bank (1999) 11 NWLR (Pt. 627) 459: Ogolo v. Fubara (2003) 11 NWLR (Pt. 831) 231: Balonwu v. Governor Anambra State (2008) 16 NWLR (Pt. 1113) 236; Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1″.PER K.B. AKAAHS,J.S.C
NATURAL JUSTICE – PRINCIPLES OF NATURAL JUSTICE
“The twin pillars of natural justice which are – (1) let the other side be heard and (2) one cannot be a judge in his own cause which are summed up in the Latin maxim ‘Audi alteram partem’ and ‘Nemo judex in causa sua’ were breached. Where a similar infraction occurred in J.S.C. Cross-River State v. Young (2013) 11 NWLR (Pt. 1364) 1. PER K.B. AKAAHS,J.S.C
LACK OF FAIR HEARING- WHETHER PROOF OF MISCARRIAGE OF JUSTICE IS NECESSARY WHERE A PARTY ALLEGES NON-OBSERVANCE OF FAIR HEARING
“Where a party establishes there was lack of fair hearing leading to an adverse decision taken against him, it will result in nullifying the proceedings. It is not necessary for him to adduce any evidence showing that a miscarriage of justice resulted in non – observance of fair hearing. PER K.B. AKAAHS, J.S.C
BREACH OF THE RULES OF FAIR HEARING – EFFECT OF A BREACH OF THE RULES OF FAIR HEARING
“Once it is established that there is breach of one or both of the cardinal rules of fair hearing in any proceedings the proceedings will be declared a nullity regardless of whether a miscarriage of justice occurred or not. See: Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224)1“.PER K.B. AKAAHS,J.S.C
PRINCIPLE OF NATURAL JUSTICE – CONCEPT OF THE PRINCIPLE OF NATURAL JUSTICE
“The established principle of natural justice is that nobody should preside and ultimately give judgment in his own cause. It does not matter whether miscarriage of justice is occasioned or not, once this principle is violated, the entire proceeding conducted under the watch and participation of an interested party stands vitiated. See Mpama v FBN PLC (2013) 5 NWLR (Pt.1346) 176 at 204 paras E – F: Adigun v A. G. of Oyo State (1987) 1 NWLR (Pt.53) 678“.PER P.A.GALINJE, J.S.C
JUDICIARY- DUTIES OF JUDICIAL OFFICERS WITH RESPECT TO THE JUDICIARY
“Nigerian judiciary is the branch of the government of this country that is invested with power to apply the Law of the land for the preservation of the rights of the citizens and protect their lives and properties. Those in charge of affairs in the judiciary must position it as a mirror to other arms of government. A situation where its affairs are conducted with reckless abandon does not portray the institution as a citadel of justice”. PER P.A.GALINJE, J.S.C
Statutes Referred To:
Constitution of the Federal Republic of Nigeria, 1999
Federal Judicial Service Commission Regulations
Public Service Rules
Supreme Court Rules
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1 Comment
It works quite well for me