In The Court of Appeal of Nigeria

On Thursday, the 18th day of July, 2019




An imperative duty has been imposed on both the trial Courts as well as penultimate Courts to consider, make findings and pronounce on material issues canvassed before them by the parties.OLUFOSOYE V. OLORUNFEMI (1989)1 NWLR (PT. 95) 26; NPA PLC V. LOTUS PLASTICS LTD. (2005) 19 NWLR (PT. 959) 158; AKIBU V. ODUNTAN (2000) 7 SCNJ 189; AGU V. NNADI (2012) 12 SCNJ 238; PAN OCEAN OIL CORPORATION NIGERIA LTD V. FMON NIGERIA LTD. (2018) LPELR?44173(CA). PER UCHECHUKWU ONYEMENAM, J.C.A.


So generally, lower Courts have been admonished by the apex Court to pronounce on issues properly placed before them in order to avoid the risk or the possibility that the issue or issues decided could be faulted on appeal resulting to a miscarriage of justice and or breach of the right to fair hearing of a party.When a Court fails to consider and pronounce even on a sole vital issue, the judgment is vitiated on ground of lack of fair hearing.MARINE MANAGEMENT ASSOCIATE INC. V. NIGERIAN MARITIME AUTHORITY (2012) 3 NWLR (PT. 1333) 506; NATIONAL INSURANCE COMMISSION V. AMINU (2012) 8 NWLR (PT. 1302) 330. There is however an exception to this general rule as where the Court has declined jurisdiction over the suit or appeal as the case may be, then it will be unnecessary to descend into other issues in the case. UKIRI EMONENA BLESSING V. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR 44213 (SC); F.C.D.A. V. SULE (1994) 3 NWLR (PT. 332) 256; IKECHUKWU V. FRN (2015) 3 MJSC (PT. 1) 123. PER UCHECHUKWU ONYEMENAM, J.C.A.


Before Their Lordships

UCHECHUKWU ONYEMENAM                                                                                  Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN                                                                                               Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI                                                                             Justice of The Court of Appeal of Nigeria


HON. JUSTICE YAU IBRAHIM DAKWANG                                                                  Appellant(s)



4. CHIEF JUDGE OF PLATEAU STATE                                                                             Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Jos delivered on 22nd October, 2007 by C. E Archibong, J. in Suit No. FHC/J/CS/7/2007; wherein the trial Court dismissed the claims of the Plaintiff. The judgement of the trial Court is found at pages 209 to 218 of the record of appeal.

The Appellant was a Judge of the High Court of Plateau State. He commenced this action by way of a Writ of Summons and Statement of Claim dated 16th January, 2007 wherein he claimed the following reliefs which is contained at paragraph 31 of his Statement of Claim:
“Wherefore, the Plaintiff claims against the defendant jointly and severally, unless otherwise specified as follows:
1. A DECLARATION that (sic) the suspension of the Plaintiff from office as a judge of the High Court of Justice, Plateau State dated 20th December, 2006 from the 1st Defendant is unconstitutional, null, void and of no effect whatsoever.
2. A DECLARATION that the compulsory retirement of the Plaintiff by the 2nd Defendant by a letter dated 5th January, 2007 is ultravires, unconstitutional, null, void and of no effect whatsoever.
3. AN ORDER setting aside the Plaintiff’s suspension by the 1st Defendant
4. AN ORDER setting aside the 2nd Defendant’s letter of compulsory retirement dated 5th January, 2007.
5. AN ORDER reinstating the Plaintiff to his office as the Judge of the High Court of Justice, Plateau State.
6. AN ORDER of perpetual injunction restraining the defendants from removing or suspending the Plaintiff from office or in any other manner interfering with his functions as a judicial office of the High Court of Plateau state
7. 20,000,000.00 as general damages for defamation and
8. The sum of 91,188,000 being emoluments accruable to the Plaintiff from the date of his compulsory retirement to his retirement age of 65 years which will be on 31st March, 2024.”
The Writ and Statement of Claim is contained at pages 3 – 11 of the Record of Appeal. Pleadings were exchanged. The 2nd, 3rd and 4th Respondents, filed a Joint Statement of Defence which is contained at pages 59 – 62 of the Records. The 1st Respondent’s Statement of Defence with its annexures is at pages 67 to 72 of the records. The facts of this case are not really in dispute. The Appellant was until 5th January, 2007 a Judge of the High Court of Plateau State. In 2006, following a very strong wind of impeachments of state governors in different states of the federation including Plateau State, the 1st Respondent pursuant to its powers under paragraph 21(d) of the 3rd Schedule to the CFRN 1999 (as amended) at its meeting of 5th December, 2006 set up a sub-committee to look into and investigate the impeachment saga and to ascertain whether the judicial officers involved were guilty of misconduct. Important to the facts of this case is that the Plaintiff was appointed acting Chief Judge of Plateau State in the period under review by the Committee. The sub-committee of the 1st Respondent invited the Appellant to appear before it to answer to the propriety of his assumption of the position as acting Chief Judge of Plateau State when he was number 6 in the hierarchy of the judges in the State. After the sub-committee submitted its report to the 1st Respondent, the 1st Respondent subsequently amongst other things concluded that the Appellant was guilty of misconduct when he made himself available to be sworn in as acting Chief Judge of Plateau State without due process. The 1st Respondent therefore suspended the Appellant from office and recommended to the 2nd Respondent that the Appellant be compulsorily retired from office. The 2nd Respondent accepted the recommendation of the 1st Respondent and compulsorily retired the Appellant from office. Consequently, the Appellant commenced this action, claiming the reliefs herein before stated.

Notably, the kernel of the Appellant’s case as can be seen from paragraph 21 of the Statement of Claim, is that, at the meeting of the 1st Respondent on 20th December, 2006 no decision was taken regarding his removal from office and no recommendation to that effect was made by the 1st Respondent to the 2nd Respondent. This was responded to in paragraph 8 of the 1st Respondent’s Statement of Defence alleging contrarily as what transpired at the said meeting of 20th December, 2006.The 1st Respondent tendered the extract of the minutes of the meeting of 20th December, 2006.

At trial, the Appellant testified in person and his evidence is contained at pages 194 – 199 of the records. The 1st Respondent on the other hand, did not call any witness but tendered three (3) documents to wit:
1. Record of proceedings of NJC Investigating Committee on recent impeachment of state governors Tuesday, 12th to Friday 15th December 2006 (Exhibit J).
2. Report of the Investigating Committee setup by the NJC on the recent impeachment of the State Governors. (Exhibit K).
3. Minutes of the emergency meeting of the NJC on Wednesday 20th December, 2006. (Exhibit L).

The 2nd to 4th Defendant did not call any witness. After the exchange of written addresses, the same were adopted on 1st August, 2007. See pages 206-208 of the record. On 22nd October 2007, the trial Court delivered its judgment.
Being dissatisfied with the decision of the learned trial Judge, the Appellant herein filed a Notice of Appeal dated 22nd November, 2007 containing nine (9) grounds of appeal. Upon the exchange of briefs filed by the parties, the appeal was heard on 3rd May, 2019. Mr. BITRUS FWANGSHAK appeared for the Appellant, while ROTIMI OGUNESO, SAN with BABAGEMI OLANIYAN represented the 1st Respondent. N. J. AGABA Principal State Counsel Plateau State Ministry of Justice appeared for the 2nd?4th Respondents. By a motion on notice filed and moved by Mr. Oguneso, SAN without opposition the 1st Respondent?s brief filed 8th April, 2019 was deemed properly filed and served on 3rd May, 2019. Consequently Appellant?s reply was equally deemed. Thereafter Mr. Fwanshak introduced the appeal as against the decision of Federal High Court sitting in Jos delivered on 22nd October, 2017. Mr. Oguneso argued the Preliminary Objection which is at paragraph 3.0 of the 1st Respondent?s brief with its written arguments at pages 5?6 of its brief filed 8th April, 2019 but deemed properly filed and served 3rd May, 2019. He urged the Court by the objection to strike out the additional grounds 1 & 2 of the grounds of appeal.

Mr. Fwanshak, in response to the Preliminary Objection referred to the Appellant?s reply brief filed 25th April, 2019 but deemed properly filed and served 3rd May, 2019, in urging the Court to dismiss the objection as unmeritorious. Mr. Fwanshak proceeded to adopt the Appellant?s brief filed 15th November, 2011 but deemed properly filed and served 11th April, 2012 and his reply brief in urging the Court to allow the appeal and to set aside the decision of the trial Court.

Mr. Oguneso, SAN on behalf of the 1st Respondent adopted their brief in urging the Court to hold that there has been irregularities in the trial, that justice has not been done to either party and that the appropriate order to make is an order for retrial.

Agaba Esq. for the 2nd to 4th Respondents said they have nothing to urge the Court having not filed any brief.

I shall as required by the rules consider the Preliminary Objection raised by the 1st Respondent?s counsel first.
In the objection, the 1st Respondent contends that Grounds 1 and 2 of the additional grounds of appeal and Issue 6 formulated thereof are incompetent and same should be struck out. The objection stems on two grounds to wit:
1. The judgment of the Court did not touch on the issue raised in the grounds of appeal and arguments under issue 6.
2. The Grounds and Issues are not derivable from the judgment being appealed against.

The learned senior counsel for the 1st Respondent submitted that the law is settled that an appeal or ground of appeal are not raised in vacuum as an appeal must attack the findings or conclusion contained in a judgment. He referred to the judgement of the trial Court at pages 209 to 218 of the record to contend that the judgment appealed against does not include the issue of unqualified persons participating at the meeting of 20th December, 2016 which the Appellant raised in additional Grounds 1 & 2 under Issue 6 in the Appellants brief. He urged the Court to uphold the objection and to strike out Grounds 1 and 2 as well as Issue 6 formulated thereof.

In response Mr. G. S. Pwul, SAN for the Appellant submitted that the objection is misconceived and frivolous in form and content. He referred to page 218 of the record to argue that the trial Court made the points raised in the additional Grounds 1 and 2. He urged the Court to hold that the referred additional Grounds 1 and 2 are borne out from the judgment of the trial Court.

As submitted by the learned s