Usman Dan Fodiyo University, Sokoto V. Professor S. U. Balogun & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an interlocutory appeal against the rulings of the Federal High Court presided over by Hon. Justice Lambo Akanbi, of the Federal High Court, Sokoto Division, in suit No. FHC/S/CS/10/2001 delivered on 1/6/2001 and 16/1/2002 respectively.

The 1st respondent was until 30th December 2000, an academic staff in the employment of the appellant. Sometimes in 1999, the visitor to the appellant constituted a visitation panel under the chairmanship of the 2nd respondent to look into all matters that will improve the learning and research environment and the well being of the students and staff of the appellant. In the course of carrying out his assignment the 2nd respondent received memoranda from the members of the appellant’s community including thirteen members of a self-style association of “Senior Academics”. The 1st respondent was at all material time a member of this association. At the end of its assignment the 2nd respondent’s panel issued its report in which it made some recommendations for consideration by the visitor relating and concerning, inter alia, the 1st respondent. The 2nd respondent’s panel particularly found that the 1st respondent was a liability and threat to peace to the appellant consequently recommended that he be compulsorily retired with full benefits from service of the appellant in the public interest. After due consideration, the visitor accepted the said recommendation and directed that the 1st respondent be retired from the services of the appellant. Following this directive of the visitor the appellant by a letter dated 30th December,2000 retired the 1st respondent.

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Unhappy with the compulsory retirement, the 1st respondent by a motion ex-parte dated 15/3/2001, sought and obtained the leave of the Federal High Court, Sokoto Division to apply for an order of certiorari to bring the proceedings, report, findings and recommendation of the 2nd respondent’s panel and the comments and decisions of the visitor to the appellant in so far as they affect and relate to the 1st respondent to the court for the purpose of being quashed.

The motion ex-parte was brought in pursuant of the provisions of order 47 rule (3) of the Federal High Court (Civil Procedure) Rules, 2000.

Before hearing could commenced on the motion on notice dated 15/3/2001 for certiorari the appellant filed two separate motions/notices of preliminary objection challenging the competence of the action and the jurisdiction of the court. After hearing parties on the preliminary objection the lower court in two separate rulings overruled the appellant on all the grounds of the objection and set down the case for hearing.

Dissatisfied with the rulings of the court, the appellant filed two separate notices of appeal filed on 7/6/2001 and 23/1/2002 to this court contained at pages 183 – 185 and 220 – 223 respectively in the printed record. The said grounds of appeal with their particulars are as follows:

“(i) The learned trial Judge fell into grave error when he held that the affidavit of service filed on the 29/3/2001 i.e the day of hearing the motion for certiorari is in compliance with Order 47 rule 5 (6) of the Federal High Court (Civil Procedure) Rules 2000.

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Particulars

(a) The learned trial Judge failed, refused or neglected to consider the fact that was clearly in evidence before the court that the motion for an order of certiorari had been adjourned/fixed/listed/entered for hearing against 29/3/2001 several days before the affidavit of service was filed;

(b) The learned trial Judge failed, refused or neglected to consider the fact that was judicially within the knowledge of the court that the affidavit of service dated and filed on 29/3/2001 was not before the court on 29/3/2001 when the matter came up for hearing;

(c) The learned trial Judge wrongly relied on the presumption of regularity in section 150 of the Evidence Act to engage himself in an unwarranted speculation as to the time when the affidavit of service might have been filed on 29/3/2001;

(d) The learned trial Judge misconceived/misconstrued the provision or requirements of Order 47 rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000.”

“1. The findings by the learned trial Judge that “the report used in 1999 is inchoate and was consummated on 30th December, 2000 vide exhibit “A” and that “these declaratory reliefs to my mind, can only be grounded on the retirement of the applicant as contained in exhibit “A”. In the circumstances aforesaid, I shall take it that the actual accrual date of the cause of action is 30th December, 2000. Consequently I hold that the action is not statute barred as it was commenced within 3 months from 30th December, 2000″ at page 8 of the ruling complained of are perverse as the same are not supported by the facts available before the court below.


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