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.