University Of Lagos & Ors. V. Professor Luke Uka Uche (2008)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO, J.C.A.

This is an appeal against the Ruling of the Federal High Court Lagos Division delivered on 8 of November, by Hon. Justice G, C. Okeke in Suit No. FHC/L/CS/617/01.

The Plaintiff in the Court below herein the Respondent commenced an action by way of Judicial Review against the Defendant in the Federal High Court Lagos Judicial Division now the Appellant. The Respondent sought by way of motion exparte sought and obtained leave to apply for Judicial review in respect of 3 reliefs, consequent upon the grant of leave, which he then applied by way of Motion of Notice dated and filed 24 July, 2001 for the following reliefs:

“1. A declaration that the suspension of the Applicant by the Respondents is unconstitutional, null and void and of no effect.

2. An order of prohibition restraining the Respondents from acting on decisions of Committees of the Respondents recommending that the Applicant be removed as staff of the Respondents.

3. An order of certiorari removing the investigations findings and recommendations of the committees of the Respondents against the Applicant into this Court of the purpose of being quashed”.

The Defendant Appellant filed a counter affidavit in opposition. Both learned counsels for the respective parties addressed the court below extensively on the issue of suspension, prohibition and certiorari. The Learned Trial Judge in her Judgment granted all the reliefs stated on the Motion on Notice (supra).

Dissatisfied with that decision, the Appellant filed its Notice of Appeal on 18 of November, 2004 containing 4 grounds of appeal. In accordance with the rules of this court both parties filed and exchanged briefs of argument. Appellant filed his brief on 13 January, 2005 whilst Respondents/Appellants Cross Brief of Argument was filed on the 11 of March, 2005. The Appellant filed a reply brief to the Respondents Brief and Cross Appeal on 5 of April, 2005.

When the Appeal came up for hearing on the 6th of May, 2008 the Appellants counsel adopted and relied on his brief and urged this court to resolve all the issues in his favour. The Respondent counsel adopted and relied on the Respondents brief of argument and urged this court to resolve the issues in favour of Respondent and dismiss the appeal.

The learned senior counsel for the Appellant, Chief A. Awomolo SAN urged the court to ignore the arguments of the Respondent in paragraph 5 to 6 in particular paragraph 5.07 up to paragraph 5.09 of their brief on the grounds that it did not flow from the 4 grounds of appeal in the Notice of Appeal. It was his contention that the Respondent did not file a Notice of Intention for him to contend on the appeals founded on other grounds. He referred to paragraph 5.07 to 5.10 contending they did not flow from the lone ground of the cross appeal dated 18 January 2005 filed 19 January 2005 by the Respondent

The learned counsel to the Respondent Mr. Quakers responding on that point submitted that the Notice of Preliminary Objection is what is envisaged by this court for the Appellant to file to avoid surprises. However, not conceding to the contention of the learned senior counsel for the Appellant, it is his submission that the issue can be raised as they are related to the grounds of appeal. He cited LPDC v. Gani Fawehinmi (1985) 2 NWLR (Pt. 7) pg. 300 – 305 ratio 6.

I have gone through the main file in this appeal and there is no Notice of Contention filed by the Respondent in accordance with Order 9 rule 1 of the Court of Appeal rules 2007 nor is there any evidence same was filed in the Registry.

From the court’s file there is a Notice of Cross Appeal dated 18 January 2005 exhibited on the Motion of Notice filed on 24 February 2005. This said Motion on Notice sought an order of court extending the time within which the Respondent may cross appeal against the judgment of the federal High Court delivered on 8 December 2004, this court considered the application refused for extension and dismissed the Motion on Notice on 13 February 2006, Also a Motion on Notice seeking similar prayer for extension of time to cross appeal was also filled, later struck out on 19 June 2006. by this court. There is no evidence from the records that this court granted extension of time to the Respondent to cross appeal.

Therefore, there is no valid Notice of Cross Appeal dated 18 of January 2005 filed in this appeal. Having carefully gone through the respective briefs of argument filed by the parties, the reply brief filed by the Appellant and the record of appeal, I will consider solely the issues arising from the grounds raised in the Notice of Appeal and discountenance submission on cross appeal under part 8 of Respondent Brief and the Appellants reply on that section.