The Polytechnic Calabar V. Effiong Edim Udobong (2007)

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NWALI SYLVESTER NGWUTA, JCA,

This appeal is against the Judgment delivered on 6/8/03 in suit No HC/476/98 by Uke, J of the High Court, Calabar.

The Respondent and the Appellant were the plaintiff and the 2nd defendant respectively in the trial Court.

The appellant, by letter reference No TPC/P/CON/2723 of May 18th 1994 appointed the Respondent a clerical officer with effect from May 6th 1992, the date of the latter’s temporary appointment with the Appellant. By letter reference No. TPC/P/CON/2723 of September 14, 1994 the Appellant confirmed the Respondent’s appointment with effect from 6/5/94, the 2nd anniversary of the Respondent’s appointment.

By a letter reference No. TPC/Reg/S/Gen.SM/24, of 22/10/98, and based on

“a wireless Message DP0161200/01/92 confirming your dismissal from the Nigerian Police”.

the Appellant dismissed the Respondent from its service.

Aggrieved by the said dismissal the Respondent commenced an action by way of originating summons claiming the following reliefs against the Commissioner of police as the 1st Defendant and the appellant as the 2nd Defendant:

“1. A declaration that the letter of dismissal dated 22/10/98 issued by the 2nd Defendant be render null and void and constitutional violation of the Polytechnic, Calabar Junior Staff condition of service.

2. A declaration that the purported dismissal of the plaintiff by the 1st defendant by a purported copy of the wireless Message DPO 161200/01/92 is unconstitutional, null and void. FOR DETERMINATION OF THE FOLLOWING QUESTIONS

a. Whether the dismissal of the plaintiff by the 2nd defendant was in compliance with chapter 6, 6.2 and 6.10 of the Polytechnic Calabar Revised Junior Staff Condition of service.

b. Whether the dismissal of the plaintiff by the 1st defendant was in compliance with the Nigerian Police Regulations as contained in the Police Act, 1990.”

In support of the claim the Respondent fi1ed an affidavit of 11 paragraphs deposed to by the himself as the plaintiff in the Court below:

BY “NOTICE OF ENTRY OF CONDITIONAL APPEARANCE AFTER LEAVE OBTAINED” dated 10/7/2001 the 1st defendant entered a conditional appearance. The Appellant (2nd Defendant) did not enter appearance. However, it was the Appellant that filed a motion dated 2/8/99 on 3/8/99 praying the Court to set aside the originating summons. The application was predicated on the following grounds:

1. That relief sought by the plaintiff cannot properly be determined under the originating summons.
2. That issues raised by plaintiff can only be appreciated after due process of Evidence in Chief and cross-examination.

On 6/12/99 the lower Court delivered its considered ruling on the motion to set aside the originating summons, holding, inter alia,” the prayer of the applicant is granted and accordingly I set aside the originating summons in this suit filed on 27/11/98 and instead order filing of pleadings in the determination of this Suit.” (underlining mine).