Prof. L. P. Orajeaka V. Emman – Owums Owuamalam Phd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the leading judgment)

This is an appeal against the Judgment of C.E.K. Anigbogu J. of the High Court of Anambra State, Ihiala Judicial Division, sitting at Ihiala delivered on the 10th December, 2008.

The facts of the case briefly are that on the 26th June, 2008, the Respondent received a letter from the committee on the investigation of allegation and counter-allegations’, constituted by the Appellants, inviting him for a “chart” on the 23rd June 2008. There were no details of what was to be discussed during the said ‘chart’. The Respondent wrote back telling the committee that he received the letter on the 26/6/2008, after the date for the ‘chart’ had elapsed and he suggested new dates because he was sick.

On the 3rd of October 2008, the Respondent received another letter reference No. ANSU/VC/M/MCIT/02 of 22nd September 2008, signed by the 1st Appellant informing him that he has been “suspended with immediate effect” from duty as a lecturer at the Anambra State University, Uli and also banned from entering the premises of both the Uli and Igbariam Campuses of the University.

The Respondent immediately wrote to the 1st appellant protesting against his suspension from duty. He gave nine reasons which in his opinion made the suspension illegal and requested the 1st Appellant to retract and reverse the decision.

When the Appellant refused to reverse the decision, the Respondent filed an action at the High Court commenced by way of judicial review seeking the following reliefs:-

(a) An order of court bringing the suspension of the applicant on a report of an adhoc committee set up by the officers of the 3rd Appellant which letter of suspension is dated 22nd of September, 2008 and signed by the 1st Appellant into the High Court for the purpose of having same quashed.

(b) An order of court quashing the said suspension of the applicant by the respondent as same is without jurisdiction, unconstitutional, null and void abinitio and a breach of the rules of natural justice.

(c) An order of court restoring the applicant to his position by quashing, the unconstitutional suspension complained above.

On the 4th day of November, 2008, the lower court granted the Respondent leave to apply for an order of certiorari to quash the proceedings complained of and it also made an order that the leave granted shall operate as stay to all actions or proceedings related to the subject matter, pending the final determination of the Motion on Notice.

The Respondent had however filed the substantive application on 31/11/2008.

The Appellants through their counsel filed a preliminary objection to the application contending that non-service of the pre-action notice on them was fatal to the Respondents’ application for judicial review.

The learned trial judge heard argument on the said preliminary objection and dismissed same on the 25th November, 2008. The Appellants filed another Notice of Preliminary Objection challenging the competence of the processes filed by the Respondent. In addition, they again filed a counter-affidavit of forty-two paragraphs in opposition to the application for judicial review. The learned trial judge after hearing argument on the Respondent’s application adjourned the matter to 10th December 2008 for ruling. The Appellants claimed that the learned trial judge did not have recourse to the Notice of Preliminary Objection and counter-affidavit they filed, nor afford them the opportunity of addressing the court on their counter-affidavit, before he delivered his ruling on the application for judicial review.

They alleged that the trial judge in the ruling went to town to cite plethora of authorities and quoted copiously from the Anambra State University Law as well as decided authorities, which were not cited by any of the parties to the application and that the Appellants were not given opportunity to react to the said authorities cited by the trial judge. The Appellants contended that there can be no better descend into the arena of conflict than that done by the trial judge as demonstrated in the ruling.