Hon. Justice C.C. Nwaogwugwu V. The President of the Federal Republic of Nigeria & Ors (2007)

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HON. JUSTICE OLUFUNMILOLA OYELOLA ADEKEYE, JCA

The appellant, Chukwuemka Comrade Nwaogwugwu, a judge of the Federal High Court Kano Division brought an application for judicial review of the Report and recommendation of the panel set up by the National Judicial Council and that of the Council with a view to quashing them pursuant to Order 47 of the Federal High Court Civil Procedure Rules 2000. In the application filed before the Federal High Court Abuja on 31/10/01 the appellant sought eight reliefs in the form of declaration, perpetual injunction, certiorari and prohibition against the seven Respondents in the instant appeal, the President of the Federal Republic of Nigeria, the Attorney General of the Federation, the Chief Justice of Nigeria, the National Judicial Council, Hon, Justice K.O. Amah, Mr. T.J. Okpoko SAN and the Federal Judicial Service commission. Prior to that application the governor of Cross River State Donald Duke wrote a petition against the appellant and two other judges of the Cross River State judiciary to the Chief Justice of Nigeria.

The petition was forwarded to the National Judicial Council the 4th Respondent. A panel was set up to investigate the allegations in the petition. He was physically present and legally represented at the hearing of the panel between January and March 2001. The petitioner was however not present or represented at any of the hearings of the panel. The report of the panel was forwarded to the National Judicial Council. At its meeting on the 17th and 18th of July 2001 the Council took a decision which was forwarded to the President of the Federal Republic of Nigeria. The National Judicial Council issued a letter of suspension to the appellant on the 2nd of November 2001.

The President of the Federal Republic of Nigeria announced the compulsory retirement of the appellant from service for misconduct on the 1st of December 2001. The appellant filed an Ex-parte motion before the court on the 31st of October 2001 seeking leave of court to apply for judicial review. He followed this up with a motion on notice filed on the 20th of November 2001.

When this motion was served on the 3rd-6th Respondents they reacted by raising a preliminary objection against the hearing of the appellants application – canvassing before the lower court seven grounds which in a nutshell are that-

(1) The action is statute barred

(2) The application is incompetent and that the honourable court lacked jurisdiction to entertain same.

(Vide pages 236-237 of the Record of Appeal). The learned trial judge heard submission of counsel on the objection.

At the penultimate paragraph of the considered Ruling delivered on 4/7/02 the learned trial judge said –

“From the foregoing therefore, I hold that the application is not only incompetent, it is also out of time. The proper order to make in the circumstance is to dismiss it. The matter is accordingly dismissed.”

Being aggrieved by the decision of the lower court the appellant appealed against the ruling on three grounds set out in the Notice and grounds of appeal filed on 12/7/02. The appellant fulfilled all conditions of appeal while the Record of proceedings compiled by the lower court and transmitted to this court was received on 17/6/03.

At the hearing of this appeal on the 8th of November 2006 the appellant adopted and relied on the appellants brief filed on the 5th of May 2004 and the Appellants reply brief filed on 12/5/06. The 1st and 2nd Respondents relied on the brief deemed filed on 22/2/06, the 3rd-6th Respondents relied on their joint brief deemed filed on 22/2/06 while the 7th Respondent relied on the brief deemed filed on 17/5/06.

In the appellants brief of argument two issues were distilled from the three grounds of appeal (Vide on pages 282-283 of the Records).

The appellants issues read as follows:-