Abubakar Tatari Ali Polytechnic V. Charles Maina (2005)

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SANUSI, J.C.A.

At the Bauchi State High Court (hereinafter called “the lower court”), the respondent as applicant filed an application dated 27/3/1998 to enforce his fundamental rights against the present appellant as respondent thereat, pursuant to Order 2 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules of 1979. In the application he sought the following reliefs:

1. A declaration that the act or series of acts of the respondent’s towards or concerning or with regards to the applicant constituted a violation of the applicant’s fundamental rights.
2. An order directing the payment of N1,000,000.00 general damages for breach of the applicant’s fundamental human rights.

The facts which gave rise to the aforesaid claims are briefly summarized thus:

The respondent herein was under the employment of the appellant, herein as officer in charge of expenditure. Part of his duties includes payments of expenditures approved by the bursar and the rector of the appellant’s institution. Sometimes in May, 1997, one Alhaji Bababe Shehu who was officer in charge of medical services approached the respondent with regard to or for payment of the sum of Three thousand, eight hundred and fifty naira earlier approved by the rector as burial expenses in respect of one Audu Usman, a deceased employee of the appellant. Due to some delay in the administrative processes the said amount was paid to Alhaji Bababe Shehu as an I.O.U. by the executive officer account, one Mallam Adamu Muhammed, before the payment voucher for the amount was prepared and processed. The voucher was prepared in the name of the overseer medical services. It was alleged that the respondent later refused to pay the said amount on seeing that the payment voucher had already been signed.

On discovering this development the respondent herein was issued with a query which he replied. Subsequently, the management of the appellant constituted a committee to investigate the matter. The respondent was invited by the committee before which he explained his own case but the committee did not become satisfied by his explanation. As a corollary, the management of the appellant’s institution terminated the appointment of the respondent in accordance with its conditions of service. The respondent thereupon became disenchanted with the decision of his employer, the appellant, to terminate his appointment and he thereupon challenged the decision of his termination by applying to the lower court for the enforcement of his fundamental right to fair hearing at the lower court, alleging that he was not given fair hearing before his appointment was terminated. In a considered ruling the lower court granted all the reliefs sought in the application by the applicant/respondent herein as adumbrated hereinbefore.

Aggrieved by the decision of the lower court, the appellant appealed to this court on four grounds of appeal. The four grounds of appeal are reproduced hereunder without their particulars.

Grounds of Appeal

1. The learned trial Judge erred in law when he held that the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979, are not mandatory and that the appellant has waived his right to object to its non-compliance by taking steps in the proceedings. The learned trial Judge erred in law when he entertained

the suit under the Fundamental Rights (Enforcement Procedure) Rule, 1979 when in fact the court lacked

jurisdiction to do so.

2. The learned trial Judge erred in law in awarding the sum of N50,000.00 to the respondent on the ground that the allegation of crime leveled against the respondent was neither reported to the police nor tried by a court of law.
3. The learned trial Judge misdirected himself on the facts when he held that the respondent was dismissed vide exhibit “E”.
4. As is the practice in this court, parties filed and exchanged briefs of argument. From the aforementioned four grounds of appeal, the appellant also distilled four issues for the determination of the appeal which are:

a. Whether the learned trial Judge was right in law to have held that the provisions of Order 2 rule 1(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 are not mandatory and that the appellant has waived his right to object to its non-compliance by taking steps in the proceedings?

b. Whether the learned trial Judge had jurisdiction to entertain the suit under the Fundamental Rights (Enforcement Procedure) Rules of 1979?

c. Whether the learned trial Judge was right in awarding the sum of N50,000.00 (Fifty thousand naira) only to the respondent on the ground that the allegation of crime leveled against the respondent was neither reported to the police nor tried by a court of law?

d. Whether the learned trial Judge has not misdirected himself on the facts when he held that the respondent was dismissed vide exhibit “E”?

On the other hand, the respondent’s counsel in his brief of argument formulated two issues for determination which are set out below. The said issues are as follows: