ONCE A GROUND OF APPEAL IS BASED ON FINDING OF FACTS WHICH ARE NOT IN DISPUTE, IT IS A GROUND OF LAW; NOT MIXED LAW AND FACTS

CASE TITLE: CHIEF OF NAVAL STAFF & ANOR V. TSENONGO (2018) LPELR-45883(CA)

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUGDMENT BY: JOSEPH EYO EKANEM, J.C.A.

FACTS OF THE CASE:

The case of the respondent at the National Industrial Court, Makurdi, before W. Abali, J., was that, he is an able seaman of the 2nd appellant. He was at all material times serving on the Nigerian Navy Ship NNS “Jubilee”, stationed at Ikot Abasi, Akwa Ibom State. He was on the order of another Naval Officer, arrested at the Ikot Abasi Naval Base on 18/2/2012 and detained till 27/2/2012 when the Commanding Officer pronounced him guilty of certain offences. He was sentenced by the Commanding Officer to dismissal from the service in addition to 28 days’ imprisonment with hard labour. This, he said, was done without affording him any hearing. He continued in detention till 2/11/2012 when he was released from custody upon the Commanding Officer being served with the processes of the Federal High Court, Uyo for the enforcement of his fundamental rights.

Consequently, respondent took out an originating summons against the appellants at the Federal High Court, Makurdi, which was subsequently transferred to the trial Court.. In the originating summons, four questions for determination were raised and three reliefs were claimed as follows:

“(1) An order re-instating the plaintiff to his full status as an officer of the 2nd defendant.

(2) An order quashing or setting aside the purported dismissal of the plaintiff from the service of the 2nd defendant as null, void and of no effect whatsoever.

(3) General, aggravated or exemplary damages.

” The appellants filed a notice of preliminary objection at the Federal High Court but did not argue it before the trial Court. The matter was heard by the trial Court on 16/7/2014 in the absence of appellants and their counsel who had not filed a memorandum of appearance or a counter – affidavit. The trial Court adjourned the matter to 6/11/2014 for “ruling” but the ruling was not delivered on that date. While the ruling was pending and on 16/6/2015 and 16/12/2015, the appellants filed two separate applications, namely;

(i) a motion on notice for;

(a) an order extending the time for the appellants to file their statement of defence;

(b) an order extending time for appellants to file their memorandum of appearance; and

(c) a deeming order in respect of the memorandum of conditional appearance already filed (the first motion or motion of 16/6/2015) and

(ii) a motion on notice directing parties to file pleadings (the second motion or motion of 16/10/2015).

When the case came up on 28/4/2016, appellants’ counsel moved the second motion which was opposed by respondent’s counsel. Immediately thereafter, he moved the first motion. The trial Court delivered a bench ruling, dismissing the first motion. Thereafter the trial Court delivered its judgment granting respondent’s claim.

Aggrieved by the judgment, appellants appealed to the Court of appeal.

ISSUES FOR DETERMINATION:

The issue for determination, as formulated by the appellant, is:

“Whether a breach of fair hearing resulting in a miscarriage of justice against the Appellants/Defendants was occasioned by the lower Court.”

DECISION/HELD:

In conclusion, the appeal was allowed.

RATIO DECIDENDI:

APPEAL – RIGHT OF APPEAL – When an appeal from the National Industrial Court to the Court of Appeal may be as of right or with leave of Court

COURT – DUTY OF COURT – Duty of Court to dispense with all pending applications and/or processes before it; effect of failure