Chief Zion Nwadike & Ors V. Awka South Local Government (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the judgment of the Federal High Court sitting in Kaduna in suit No. FHC/KD/CP/27/03 delivered by A.M. Liman J. on 9th July, 2004. It was the case of the applicant in the court below (now respondent) that he was appointed the Chief Executive Officer of the defendant for a period of 4 years in 1996. That on completion of his tenure, the President of the Federal Republic of Nigeria reappointed him for another tenure of 4 years. He admits that the supervisory Ministry of the defendant is the Federal Ministry of Transport headed by the Honourable Minister for Transport. The facts further disclose that the respondent had problems with one Alhaji Isa Yuguda who threatened to remove him from office. At a stage, he was, with the approval of the President of the Federal Republic of Nigeria retired from service on ground of public interest on 20th May, 2002. He petitioned the Head of Service of the Federation who directed the defendant to continue to pay his salaries, allow him the use of his official car and residence pending the determination of his petition. The appellant however felt otherwise. That although the said letter from the Head of Service was served on it, it posits that it takes directives from the Federal Ministry of Transport which is its supervisory organ and not the Head of Service of the Federation. The appellant then instituted a case at the Rent Tribunal Kaduna against the Respondent and he was ejected by the order of the court.

In view of the prevailing circumstance, the respondent who was the applicant in the court below initiated the suit against the appellant who was the respondent therein by a prerogative writ seeking the following reliefs:-

(a) A declaration that the applicant is entitled to the continuous payment of his monthly salary and the use of his official car and residence as directed by the Head of Service of the Federation vide a letter dated 5/7/2002 with Ref. No. PSO//PS/99/009/VOL.1/108 to the respondent pending the determination of the applicant’s complaint of unlawful and premature retirement from service.

(b) An order of mandamus compelling the respondent to continue paying the applicant’s monthly salary in the total sum of N139,098,66 (consisting of (a) basis monthly salary N119,282.66 (b) Transport Allowance N15,660.00 (c) Domestic Servant Allowance N2,800.00, Meal subsidy N1,350.00 from the month of September 2002 and allow the applicant the use of his official vehicle and residence until the resolution of the applicant’s case as directed by the Head of Service of the Federation in a letter dated 5/7/2002 with Ref. No. PSO/PS/99/009/VOL.I/108 to the respondent.

(c) An order of mandatory injunction directing the respondent to restore and allow the applicant’s unimpeded use of his official residence in the respondent’s premises pending the resolution of the applicant’s case by the office of the Head of Service of the Federation.

(d) An order directing the respondent to account for all applicant’s properties removed from the applicant’s official residence at the instance of the respondent by agents/staff of the respondent.

(e) Exemplary damages of One Million-Naira (1m) against the respondent for unlawful eviction of the applicant from his official residence and denial of his monthly salaries since September, 2002.”

The respondent as applicant at the court below filed a 42 paragraphs affidavit in support of the writ. The respondent (now appellant) filed a five paragraph counter affidavit and a six paragraph further and better counter affidavit in opposition. The learned trial judge took arguments from the applicant’s counsel on 22/1/04 and adjourned the matter to 5th February 2004 for continuation of hearing. There is nothing on record to show what happened thereafter until 9th July, 2004 when the learned trial judge gave a short, one paragraph ruling on the matter granting all the reliefs sought by the applicant and reserving details of the judgment to a date for which parties were to be notified.

Dissatisfied with the stance of the learned trial judge, the appellant has appealed to this court. He filed notice of appeal on 30/9/04 containing five grounds of appeal and on 24/11/05, this court granted leave to the appellant to file and argue one additional ground of appeal.

The appellant filed his brief of argument on 29/11/05 which brief contains four issues formulated for the determination of the appeal. The issues are as follows:-

(1) Whether the purported judgment delivered by the lower court on 9/7/2004 is not a nullity thus rendering the entire proceedings null and void?

(2) Whether the entire proceedings and judgment of the lower court is not vitiated by the fact that the appellant was neither heard at all nor given an opportunity of being heard.

(3) Was the jurisdiction of the lower court not voided by the mode of commencement of the action?