Alhaji Ibrahim Abdullahi V. Military Administrator & Ors (2003)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A. 

In the Kaduna State High Court of Justice, in the Kaduna Judicial Division, sitting in Kaduna, the applicant commenced an action by originating summons supported by a 37 paragraph affidavit to which were exhibited twenty six documents, marked as exhibits IA1 – IA26. The respondents did not contest the suit. Apart from filing a joint memorandum of appearance and making one appearance the respondents did not respond to the affidavit in support of the summons nor did they appear to make a speech or speeches in rebuttal.

Learned trial judge, Makeri, J., in a reserved and considered judgment, delivered on 30th June, 2000 dismissed the suit in its entirety. Being dissatisfied with the decision of the learned trial judge dismissing his claim, the applicant filed a notice of appeal containing six winding and verbose grounds of appeal. With leave of the court granted on 15th March 2001, applicant filed two additional grounds of appeal.

At the hearing of the appeal, Mshelia, learned counsel for applicant (hereinafter referred to as the appellant) adopted and sought reliance on the appellant’s brief prepared and filed by I.N. Buba of counsel which was deemed filed with the order of court granting extension of time on 29th October, 2001. Learned counsel further informed the court both orally and in appellant’s brief to the effect that grounds 1, 3 and 5 of the original grounds of appeal are abandoned. Learned counsel thereafter related additional ground 1 to issue 1 while relating original grounds 2, 4 and 6 as well as additional ground 2 to issue 2. Thereafter learned counsel for appellant, Mshelia, urged upon the court to allow the appeal. It seems from what she did issue 3 does not derive from any of the grounds of appeal. Learned counsel in relating the grounds of appeal to the three issues framed failed to relate any ground or grounds to issue 3. Issues must be framed from or need to encompass grounds of appeal- Idiaka vs. Erisi (1988) 2 NWLR (Pt.78) 563. Since an issue must derive from ground or grounds of appeal and the appellant herein having exhausted his grounds of appeal by respectively relating them to issues 1 and 2, after abandoning 3 of them there appears to be no other ground left to sustain appellant’s issue 3.

In the appellant’s brief of argument, however, it is observed that the additional ground 2 was expressly related to issue 3 in this appeal. In the circumstance, I ex cautela abudanti assume that appellant does not intend to abandon his issue 3. The impression created in the oral submission is a mere oversight arising from pressure of work which is bound to occur in the course of duty of an advocate. It is a mere lapse of tongue to wit lapsus linguae. I for this reason overlook the same. The appellant’s 3 issues as formulated in his brief of argument are deemed to be calling for consideration in this appeal. The appellant therefore has three issues for consideration in this appeal.

The appellant, having orally and in writing in his brief of argument, abandoned original grounds 1, 3 and 5, the 3 grounds are hereby struck out.

Respondents acted to character. Just as they failed to defend the action in the trial court, they failed to appear in this court, throughout the proceedings resulting in the determination of the appeal not to talk of filing their brief or briefs of argument. They did more importantly, not file their joint or respective briefs of argument. The appeal is, therefore, being decided solely on the appellant’s brief of argument.

In the appellant’s brief, the following Issues were formulated:

“(i) Did the appellant prove his case in the lower court on the balance of probability?

(ii) Did the lower court act as an independent and impartial arbiter having regards to the facts and evidence before it?

(iii) Is the lower court right in refusing to accept the unchallenged and uncontradicted evidence of the appellant?”

Before embarking upon consideration of the argument canvassed in support of the respective appellant’s issues, in the appellant’s brief, I proposed to state however succinctly the facts of this case. The appellant was invited to retire from the service of the Kaduna Civil Service. When he failed to accede to the request he was retired with effect from 31st March, 1998 on the ground that he had served for a period of 35 years. The Kaduna State Civil Service Commission apparently predicated its decision to retire the appellant from its service after serving for 35 years and before attaining the age of sixty years on Implementation Guidelines on the Civil Service Reforms of 1988 which are made in pursuance of Civil Service (Reorganisation) Decree 1988 which enactment had been repealed with effect from 1st April, 1995. The appellant received a letter Exhibit IA7, stopping his salary and requesting him to handover government property in his possession, from Director of Personnel Management of the Ministry he was serving at the material time. Appellant acting on the strength of the letter, Exhibit IA7 as well as exhibit IA13, IA14, IA15, IA16, IA17 went to court by way of originating summons claiming as follows:-

“1. A declaration that the purported retirement of the Plaintiff by the 1st to 5th defendants is contrary to Decree 102 of 1979 and is illegal, null and void.

2. A declaration that the stoppage of the plaintiffs salary and emoluments with effect from March 31st, 1998 is illegal, null and void.
3. A declaration that the breaking into the Plaintiffs office and the removal of his items therefrom by the 6th Defendant on April 29th 1998 is illegal.
4. A declaration that the plaintiff is entitled to consideration for and promotion to grade level 16 by the 1st, 2nd, 4th and 5th Defendants. In the alternative: that the emoluments and benefits accruing to a Grade Level 16 officer accrue to the plaintiff and same be made and paid personal to him.
5. An order of immediate reinstatement of the plaintiff to his office by the Defendants.
6. An order that all the emoluments of the Plaintiff with-held since March 31st 1998 till his reinstatement in office be paid to him.
7. An order that the 4th Defendant consider and effect the over due promotion of the plaintiff to a Grade Level 16 officer with its attendant emoluments or make payment of same personal to him.
8. Damages in the sum of N=50,000.00 against the 6th Defendant for breaking into the plaintiffs office.
9. The return of the items removed from the plaintiff’s office by the 6th Defendant or damages in the sum of N=10,000.00 being the cost of replacing same.”

The appellant caused the originating summons to issue for the determination of the following issues or questions: