Professor Buba Garegy Bajoga V. The Government of the Federal Republic of Nigeria & Ors. (2007)

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CHIDI NWAOMA UWA, J.C.A.

The appeal is against the Ruling of the Federal High Court, Abuja (hereafter referred to as the trial Court) delivered on the 14th day of November, 2003 in Suit No. FHC/ABJ/M/413/2002.

In accordance with Order 47 of the Federal High Court (Civil Procedure) Rules the Appellant had sought and obtained the leave exparte of the trial Court, to apply for Judicial Review by way of an Order of Certiorari to remove into that Court for the purpose of being quashed the Report of the 3rd Respondent Judicial Commission of Inquiry and the Federal Government White Paper containing the views and directions of the Federal Government of Nigeria thereon in so far and to the extent to which they indict, sanction or otherwise adversely or prejudicially affect the Appellant herein. The enrolled Court Order granting leave to bring the application on Notice is in Vol. I Pages 547-548 and Vol. II Pages 828-829 of the printed records.

Therefore, the Appellant filed his Originating Notice of Motion dated 10th January, 2003 and filed on 14th January 2003, applying for the Order of Certiorari. As shown in the enrolled Order granting leave, the Court fixed the 20th of January, 2003 as the return date for the Motion on Notice.

Upon service of the originating Notice of Motion on the Respondents, the Applicant on the 17th of January, 2003 personally deposed to an affidavit verifying due service of the originating Court processes on all the Respondents.

On the return date of 20th January, 2003, after confirmation of service of the Court processes on the Respondents, the Court fixed the application for hearing on the 24th of February, 2003 but due to the absence of the Respondents and Counsel the matter was adjourned to the 15th day of April, 2003 for hearing, on this date there was representation by Counsel from Federal Ministry of Justice on behalf of all the Respondents. The case was then adjourned to 2nd July, 2003 for hearing. The Respondents then filed their Counter-Affidavit in opposition to the suit on 28th of May, 2003. In response to the said affidavit the Appellant filed a Further and Better Affidavit to which documents were exhibited.

Thereafter, the Respondents’ Counsel filed and served a Notice of Preliminary Objection dated 26th June, 2003. The Appellant then filed a Notice of Objection dated 26th June, 2003, to the competence of the Notice of Preliminary Objection, in reaction to this, Respondents’ Counsel abandoned same and filed another Notice of Preliminary Objection dated 3rd July, 2003.

With the pendency of the Notices of Preliminary Objection, the main application could not be heard on the adjourned date of 2/7/03, on that day, the Court adjourned to 30th September, 2003 for hearing “the Multiple Preliminary Objection”.

On the 30th day of September, 2003 when the matter came up, arguments were taken from both sides on the competence or incompetence of the suit. Ruling was delivered on 14/11/03, the trial judge while dismissing, the main grounds of Objection raised by learned Counsel for the Respondents, raised suo motu, two issues, after resolving same struck out the substantive suit. The two issues are:

(a) issue of non-compliance by the Appellant with the requirements of Order 47 Rules 5(4) and (5).

(b) Order 47 Rule 5 (6) dealing with filing of the affidavit by the Appellant verifying service of the Origination Notice of Motion on the Respondents,

Dissatisfied with the Ruling of the trial Court, the Appellant filed an appeal against the ruling and filed a Notice of Appeal dated 17th November, 2003, in which three (3) grounds of appeal were set out. Subsequently, the Appellant filed a second Notice of Appeal.

On the 24th day of April 2007 when this appeal came up for argument, none of the Respondents was in Court nor represented by Counsel despite the fact that the Respondents were served with the hearing Notices on 18/1/07. Before this date there was an application by the Appellant to argue this appeal based on the Appellant’s brief alone, which was moved and granted on 3/5/05.

1. The Appellant had filed his brief as far back as 21/4/04, and served on the Respondents Counsel on 26/5/04. Thereafter the Respondents’ learned Counsel filed an application to file their brief out of time dated and filed on 23/6/05 which was never moved. The application not having been moved as at 24/1/07 when this appeal was argued is deemed abandoned.

Following the grant of the application to argue the appeal based on the appellant’s brief granted on 3/5/05 in line with the provisions of S.16 of the Court of Appeal Acts, Cap. 75, LFN; 1990, Order 3 Rule 3 (1) and Order 6 Rule 4(1) of the Court of Appeal Rules, 2002 the learned appellant’s Counsel adopted fully his brief, this appeal was therefore decided based on the appellant’s brief alone.