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Akulega v. B.S.C.S.C.

SAMUEL TOR AKULEGA

V

BENUE STATE CIVIL SERVICE COMMISSION

ATTORNEY-GENERAL, BENUE STATE

COURT OF APPEAL

( JOS DIVISION )

IBRAHIM TANKO MUHAMMAD, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/255/98

MONDAY, 19TH FEBRUARY, 2001

ACTION - Action for the enforcement of the right of fair hearing - What court must consider therein

APPEAL - Constituents of an appeal - Whether include any proceeding taken to rectify an erroneous decision of a lower court by a High Court

APPEAL – Findings which have no bearing on final order of court Impropriety of appealing against same

APPEAL - Grounds of appeal - Need for to relate to the decision of trial court - Need for to be a challenge to the ratio decidendi of the decision

APPEAL - Grounds of appeal - One competent ground of appeal - Effect of on the notice of appeal - Whether can save appeal from being struck out even if all other grounds are incompetent

APPEAL - Grounds of appeal - One or more grounds of appeal found to be incompetent - How treated - Need to strike same out and not the notice of appeal

APPEAL - Notice of appeal - Competency of where only one ground of appeal is competent

CONSTITUTIONAL LAW - Constitution of Federal Republic of Nigeria, 1979 -  Section 33(2) thereof - Importance of vis-a-vis administrative power of government

COURT - Trial court - Duty on to rightly identify issues for determination in a suit

EVIDENCE - Proof - Standard of proof in civil and criminal cases

FAIR HEARING - Fundamental right of fair hearing - Importance of as the bedrock of the enthronement of rule of law in civilized society

FAIR HEARING - Right of fair hearing and other fundamental human rights -  Importance of as major yardstick to measure true democracy and prevalence of the rule of law

FAIR HEARING - Right to fair hearing - Proceedings in breach of - Effect thereof

FUNDAMENTAL HUMAN RIGHTS - ‘Audi alteram partem’ - Meaning of

FUNDAMENTAL HUMAN RIGHTS - Duty of court to ensure protection of -  How fundamental rights can be detracted from

FUNDAMENTAL HUMAN RIGHTS - Persons accused of wrong doing -

Rights of  - Entitlement of same to know the charge against him and to cross-examine his accusers

FUNDAMENTAL HUMAN RIGHTS - Rights of fair hearing - Action for the enforcement of - What court must consider therein

FUNDAMENTAL HUMAN RIGHTS- Constitutionally enacted fundamental human rights - Status of - Attitude of court to alleged infringement thereof

JUDGMENT AND ORDERS - ‘Decision’ - Meaning of - Section 272(1), 1979  Constitution

JUDICIAL PRECEDENT - Facts in the instant case - Distinguishing same from holding in Yesufu vs. Kupper International N. V. (1966) 1 RMLR ( Pt. 11)  97

LEGAL PRACTITIONERS - Citing of authorities and enunciation of principles in legal argument - Need to relate authorities cited and principles enunciated to issues at hand - Effect of non -compliance

NATURAL JUSTICE - Principle of natural justice enacted in section 33(1) of the 1979 Constitution - Purport thereof

PRACTICE AND PROCEDURE - Investigations carried out by a previous Board of Inquiry - Whether can be used by a newly constituted Board

PRACTICE AND PROCEDURE - Principles enunciated and authorities cited in legal argument - Need for to relate to matters in issue in a case - Effect of failure to so relate

WORDS AND PHRASES - ‘Appeal’ - Constituents

WORDS AND PHRASES - ‘Audi alteram partem’ - Meaning of

WORDS AND PHRASES - ‘Decision’ - Meaning of

Issues:

1.            Whether the grounds of appeal as framed by the appellant are competent.

2.            Whether in an action for the enforcement of fundamental rights to fair hearing, it is a relevant consideration for the court to inquire into the validity of decision reached in violation of such rights.

3.            Whether the appellant had been given fair hearing by the respondents  in allegations of concealment of facts, before his employment was terminated.

Facts:

The appellant was dismissed from the service of the respondent by a letter dated the 2nd of April, 1997. The reason for the dismissal as stated in the letter was the concealment of the fact of the appellant’s prior dismissal from the services of the Benue - Plateau Public Service, which made him ineligible for employment in the Benue State Public Service by virtue of Rules 36 and 37 Civil Service Rules of Benue State.

The appellant filed a suit at the Benue State High Court, alleging a breach of his fundamental rights to fair hearing and seeking reinstatement. He alleged that he was not given the opportunity to defend himself in the allegation of concealment, that in fact, the allegation was not made known to him. The respondent on its part, asserted that in the circumstances of the case, the appellant was not entitled to be heard on the allegations against him, as he had earlier been given an opportunity to defend himself in a similar allegation in 1979, the investigation of which was not concluded. It stated that investigation into the records of the appellant showed that he had indeed been dismissed from the services of the Benue - Plateau Public Service in 1972, a fact which he concealed, in filling the form of employment with the respondent. Learned counsel for the respondent submitted that on the strength of such obvious facts coupled with the provisions of rule 37 of the Civil Service Rules of Benue State, he (appellant) was liable to being summarily dismissed without notice.

The trial court in its decision, held that in the circumstances of the case, the respondent was entitled to terminate the appointment of the appellant. The learned trial Judge held that the appellant was indeed guilty of concealment of facts and thus rightly summarily dismissed.

Dissatisfied, the appellant appealed to the Court of Appeal, inter alia, on the ground that the trial court derailed from the issues before it, which was whether there had been fair hearing afforded him or not and went on to consider the propriety of the respondent’s action and to ‘try’ him for concealment of facts (a criminal offence).