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96NA/41/2639 CPL JULIUS ABIODU & 25 ors -VS- NIGERIAN ARMY & 4

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: FIRDAY 27TH SEPTEMBER  2019                      

SUIT NO.NICN/EN/10/2016

 

BETWEEN:

  1. 96NA/41/2639 CPL JULIUS ABIODU
  2. 98/NA/46/2852 CPL IRABOR UKADIKE
  3. 2000NA/49/49/925 CPL FIDELIS NNAZOR
  4. 2000NA/49/22/2216 CPL YOILA ELIYOTIM
  5. 02NA/53/2739 CPL TIMKORU SELEKEODUDU
  6. 03NA/53/2418 CPL OLATUNJI TUNDE
  7. 98NA/47/4792 L/CPL JOSEPH OMOAYA
  8. 03NA/53/2357 L/CPL CHARLES AMAECHI
  9. 03NA/54/3955 L/CPL OKEMMRI LOUIS
  10.  04NA/55/1452 L/CPL EKPETA LAWRENCE
  11.  09NA/63/2437 L/CPL ALIYU BALA
  12.  13NA/70/7191 L/CPL BILYAMINU UMAR
  13.  12NA/63/5423 L/CPL IBRAHIM WAZIRI                      CLAIMANTS
  14.  13NA/72/4979 L/CPL DONATUS OLEDIUWAMMA
  15.  13NA/70/10484 PTE ODOUGWU RICHRAD
  16.  13NA/70/7953 PTE IDRIS UMAR
  17.  12NA/67/3016 PTE OKAKA EMEKA
  18.  13NA/70/8395 PTE MUHAMMED SHEHU
  19.  12NA/63/7195 PTE MICHAEL UNO
  20.  12NA/67/4436 PTE AGUM FELIX
  21.  13NA/70/6130 PTE EHURKE EMMANUEL
  22.  09NA/64/5327 PTE ABDULLAHI SULEMAN
  23.  13NA/69/2264 PTE JIMOH RASAQ
  24.  09NA/64/5349 PTE BUKAR ADUD
  25.  10NA/65/6897 GNR SOLOMON CHRISTIAN
  26.  13NA/69/2101 PTE HOSANNA OTTONG                               

                                                                                                           

AND

 

  1. NIGERIAN ARMY
  2. CHIEF OF DEFENCE STAFF
  3. CHIEF OF ARMY STAFF                                               DEFENDANTS
  4. BRIGADIER GENERAL J. SAHARAM (N/8654)
  5. LT. COL. R.S. OMOLORI (N/10369)

 

 

APPEARANCES:

  1. D.C. EKWEALOR FOR THE CLAIAMNTS.
  2. UBAKA UGWU FOR THE DEFENDANTS.

 

JUDGMENT

INTRODUCTION

This suit was commenced by way of by Complaint wrongly tagged ‘Writ of Summons’ on 15th May 2014. Subsequently, on 30th April 2018, the claimants filed Further Amended Complaint accompanied with Further Amended Statement of Facts, wherein the claimants claimed the following reliefs at the end:

  1. A declaration that the dismissal of the claimants from the Nigerian Army is unlawful, unconstitutional, null and void and of no effect.
  2. An order that the unlawful dismissal of the 2nd claimant be converted to retirement, as the claimant has decided for voluntary retirement, with the payment of all his benefits and entitlements.
  3. An order of reinstatement of all the claimants except the 2nd claimant (25 remaining claimants) on record into the Nigerian Army and to promote all the claimants who are due for promotions in the interest of justice and pay them all their salaries, allowances and entitlements.
  4. An order to pay general damages of Eighty Million Naira (80, 000,000.00) only to all the claimants.
  5. A written apology from the Nigerian Army to the claimants for unlawful detention and for denying them fair hearing, which is their constitutional right.

 

In reaction to the original pleadings of the claimants, the defendants filed Statement of Defence on 21st April 2016 to which the claimants reacted by way of Reply to the Statement of Defence on 26th July 2016. This is all about the important processes necessary, at this stage, for the judgment. I now proceed to summarise the pleadings of the parties.

 

SUMMARY OF THE PLEADINGS

  1. Further Amended Statement of Facts

The claimants pleaded that they were forcibly dismissed without fair hearing while they were fighting the insurgents without food and with inferior weapons to those of the insurgents; and that, as a result, the 118 battalion, of which they all, were members lost a lot of their soldiers. They pleaded the photograph of some dead 118 Battalion soldiers. They pleaded that the Brigade Commander on 28th November 2015, repeatedly baited the soldiers of the 118 Battalion in Gubio town with the announcement that, the army work was voluntary, as such, any member who wished to leave should come out, and that he would ensure their entitlements were paid. They pleaded that as a result, five soldiers and one officer came out, but that surprisingly, the same Brigade Commander ordered that they be disarmed. They pleaded that thereafter, the Brigade Commander ordered them to be locked up in the guardroom; and the soldiers who came out are nos. 2nd, 4th, 8th, 9th and 19th on the record of this Court.

They pleaded that later on 1st December 2015, the same Brigade Commander addressed soldiers at Memalari Barracks in Maiduguri telling them that any soldier who for whatever reason could not advance to Cross or Kukawa towns should come out; and following this bait, 24 soldiers came out while others raised their hands to give their reasons but the General refused to hear them and ordered the Military Police to disarm and lock them up in the guardroom. They pleaded that they were locked up and chained without food and water, which forced them to drink their urines to survive. They pleaded further that on the 8th December 2015, the Commanding Officer of the 118 Battalion charged these arrested soldiers with disobeying particular orders and the claimants all pleaded not guilty but the Commanding Officer retorted that “You are all guilty” and awarded dismissal to all the claimants on the instructions of the Brigade Commander. They pleaded that thereafter the claimants were all chained for days without food and water and later taken from Maiduguri to Kaduna in chains and were released to go home as dismissed soldiers. They pleaded that subsequently, the 118 Task Force Battalion confirmed their unlawful dismissal; and as a result of the aforesaid, they have suffered loss and damages and therefore this suit and the reliefs claimed. That is all about the Further Amended Statement of Facts. I move to the Statement of Defence.

 

  1. Statement of Defence

The defendant countered paragraphs 3 and 4 of the original Statement of Facts by pleading that sufficient assistance were provided to the soldiers contrary to the claimants’ averment and that more than 2000 soldiers were currently at Damasak in Borno State, fighting the insurgents and never complained of lack. In reaction to paragraph 5 of the original Statement of Fact, the defendants pleaded that the soldiers lost their lives fighting gallantly in battle and not as a result of lack of weapons. The defendants pleaded further that contrary to the averments of the claimants, they the claimants disobeyed the order of Brigadier General J. Saharam that the 118 Battalion advance to Kukawa town and threatened to kill if forced to advance. The defendants pleaded further that, as a result of the threat, Brigadier General Saharam coaxed the mutinous soldiers to lay down their arms for peaceful resolution of the issue upon which they were arrested and summarily tried.

The defendants countered paragraph 7 of the original Statement of Facts by stating that contrary to the averments of the claimants’, casualties were suffered as a result of engagement in the war front; and in reaction to paragraph 8 of the claimants that contrary to the averments, the claimants revolted against the order of General Saharam and threatened to kill everybody if the order was not rescinded; and they were accordingly tried and dismissed in compliance with military laws. The defendants pleaded further that they never chained nor starved the claimants but only detained them pending investigation; and that it was after investigation that they were summarily tried and dismissed for disobeying a particular order. The defendants pleaded too, that the claimants did not suffer any damage or loss but that rather the Nigerian Army did in that the claimants revolted and refused to defend their fatherland, against their oath of office; hence, the action is frivolous and should therefore be dismissed. I move to the reply pleadings by the claimants.

 

  1. Reply to the Statement of Defence

The claimants countered paragraphs 1, 2 & 3 of the Statement of Defence by pleading that contrary to the averments of the defendants, the newspaper publications whereby, Alex Bade, the former Chief of Defence Staff stated that soldiers fighting Boko Haram had no weapons and were poorly motivated put a lie to the defendants’ averment and support the case of the claimants. The claimants, in reaction to paragraphs 4, 5, 6, 7, 8 & 9 of the Statement of Defence pleaded that the soldiers never disobeyed any order given by Brigadier General Saharam but only retreated to Gubio in Borno State when they were overpowered by Boko Haram; and that Brigadier General Sharam was not even with the troop and did not give any order but only came to Gubio to address the troops after the attack. In further answer to paragraphs 9 & 10 of the Statement of Defence, the claimant pleaded that they did not disobey any particular order; and that the procedure adopted in the dismissal of the claimants was not in accordance with military law and natural justice and right of fair hearing in that, there was no investigation by the Military Police, no charge sheet read was read to the claimants and they were not accorded opportunity to defendant themselves and the charge was in secret without any witness testifying against them. The claimants pleaded Policy Order and pictures purportedly showing that they were detained against paragraphs 11, 12, 13, and 14 of the Statement of Defence. Thus ended the reply. I move to proceedings before the Court.

 

PROCEEDINGS

The case came up first before His Lordship, Hon. Justice A. Ibrahim on 28th June 2016. It came up further before His Lordship on several other occasions, the last of which was 7th June 2017. Thereafter, it came up before Hon. Justice I. J. Essien first on 9th November 2017 till 14th June 2018 when it came up last before Hon. Justice I.J. Essien. It subsequently came up before me first on 26th November 2018. The application of the learned counsel to the claimant to further amend the Statement of Facts dated 9th and filed 13th April 2018, was granted by Hon. Justice Essien on 26th April 2018 in the course of trial. Two days were given to file the Further Amended Statement of Facts; and it was filed within time on 30th April 2018, 28th and 29th being Saturday and Sunday. The trial started de novo before me on 21st January 2019.

The 1st claimant, Corporal Julius Abiodun testified as CW1. CW1 adopted his written deposition made 7th March 2016. Exhibit C1 was admitted for the CW1 after the objection to its admissibility was overruled. At this stage, CW1’s testimony was brought to an end. Cross-examination of CW1 was commenced and concluded the same date without re-examination while the case was adjourned to 2nd March 2019 for continuation. It came up on 25th March 2019 as adjourned and CW2 testified by adopting his written depositions made 7th March 2016 and 26th July 2016. CW2 identified Exhibit C1 and tendered Exhibits C2, C2A, C2(b) and C3 without objection. Thereafter, the testimony of CW2 was brought to an end and cross-examination began in earnest. The cross-examination was closed the same day without re-examination.

The case of the claimants was thereafter closed; and the case adjourned to the following day for defence. On this date, the Court granted the motion of the defendants’ for substitution of witness dated 22nd March 2019 and filed 25th March 2019 without opposition. Thereafter, Major Aroma Ekerika testified for the defence as DW1. DW1 adopted his written deposition made 25th March 2019 without tendering any document, and his testimony was brought to an end. Cross-examination of DW1 commenced in earnest and was closed without re-examination the same day. The case was thereafter adjourned for further defence, which did not take place on 25th June 2019, as the defence counsel closed the defence on this date, because further witness could not be secured. On application of the defence counsel for abridgment of the time to file final written addresses to which the claimants’ counsel concurred, the case was adjourned to 15th July 2019 for adoption of final written addresses of the parties.

The matter came up as adjourned on 15th July 2019 for adoption of the final written addresses of the parties and the learned counsel for the parties adopted the respective final written address filed on behalf of the defendants and the claimants. In adumbration, the learned counsel to the defence argued that because the Court Martial had heard the matter and determined it, this Court lacks the jurisdiction to hear it again not being the appellate Court to the Court Martial. The learned counsel submitted that since the claimants had admitted this, there is no need for further proof. Thus, ended adumbration on the final written address of the defence. I move to the adumbration of the learned counsel to the claimants. The learned counsel submitted that, they admitted that Colonel R.S. Omolori, but not a Court Martial, tried the claimants. The learned counsel submitted that Lt. Colonel R.S. Omolori is not a Court Martial; and that the meaning of Court Martial was addressed in the claimants’ final written address. The learned counsel submitted that a Court Martial is a panel and not a one-man business. There ended the adumbration of the learned counsel to the claimants. There was no reply filed. Thereafter, the case was adjourned to 24th September 2019 for judgment but the judgment was brought to an earlier date of 20th September 2019 because of the weeklong programme connected with the retirement of the Hon. President of the Court, which covers the date.

However, it could not be delivered on 20th September 2019 because of the need to consult an unreported authority cited by the learned counsel to the claimants but with which the Court was not furnished. It was a result adjourned sine die and date of its delivery communicated to the parties’ counsel. I move to summary of the final written addresses of the parties.

 

SUMMARY OF THE FINAL WRITTEN ADDRESSES

  1. Defendants’ Final Written Address

UBAKA UGWU franked the defendants’ Final Written Address. The learned counsel formulated two issues, which are:

  1. WHETHER THIS HONOURABLE COURT HAS THE JURISDICTION TO HEAR APPEAL FROM THE COURT MARTIAL. [Sic]
  2. WHETHER THE 3RD AND 4TH DEFENDANTS ARE NECESSARY PARTIES IN THIS SUIT AND SHOULD FORM PART OF DEFENCE IN THIS SUIT. [Sic]

 

Arguing issue 1, the learned counsel submitted that, this Court lacks the vires to hear appeal from the Court Martial by virtue of section 240 of the 1999 Constitution, which conferred the Court of Appeal with the jurisdiction. The learned counsel cited Salihu v. Ministry of Defence & 2 Ors (2009) 1 NWLR (Pt. 1123) 548 at 555, r. 11 in support of his submission. The learned counsel submitted that the claimants admitted that there was a summary trial at the court martial and cited the evidence of CW2 under cross-examination on 25/3/2019 wherein he admitted that a charge was read to him and he pleaded not guilty and he was summarily convicted and paragraph 12 of the Statement of Facts and 21 of the written depositions of the claimants. The learned counsel submitted that, in as much as the claimants refused to appeal the decision of the court martial at the Court of Appeal, this Court lacks the jurisdiction to usurp the jurisdiction conferred on the Court of Appeal to the exclusion of all other courts. The learned counsel argued that whether or not they were properly tried, this Court lacks the jurisdiction to inquire into any such complaints. The learned counsel cited Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199 411, r. 1 on the meaning of jurisdiction and what it entails. The learned counsel cited Egharevba v. Eribo [supra] r. 4 and urged the Court to look at the relevant paragraphs of Statement of Facts and the written depositions of the claimants to determine the issue of jurisdiction raised.

The learned counsel cited Okogi v. Okoh (2010) 9 NWLR (Pt. 1199) 311 at 317, r. 7 and Ogunde v. Gateway Transit Ltd (2010) 8 NWLR (Pt. 1196) 209 on the effect of lack of jurisdiction on proceedings before a court. The learned counsel citing Osigwe v. P.S.P.L.S. MGT Consortium Ltd (2009) 3 NWLR (Pt. 1128) 378, urged the Court to hold that it lacks jurisdiction to inquire into whether the court martial complied with sections 56, 121, 123, 124 of the Armed Force Act, 2004 [hereinafter called ‘AFA’]. Thus, the arguments on issue 1 were brought to a permanent halt. The learned counsel thereafter moved to issue 2. There I go.

Arguing issue 2, the learned counsel for the defence submitted that, the 3rd and 4th defendants are not necessary parties, being employees of the Nigerian Army, could not be sued personally since, they did all they did in their official capacities. The learned counsel argued too that no relief was made against the duo. The learned counsel cited Osigwe v. P.S.P.L.S. MGT Consortium Ltd [supra] on when it is necessary to make a person a party to a suit, and urged the Court to hold that the duo are not necessary parties. The learned counsel finally urged the Court to strike out the names of the 3rd and 4th defendants. Thus, ended the final written address for the defendants. I move to the claimant’s final written address.

 

  1. Claimants’ Final Written Address

D.C. EKWEALOR franked the claimants’ final written address. The learned counsel for the claimants formulated four issues, which I reproduce hereunder:

  1. WHETHER THE HONOURABLE COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS SUIT. [Sic]
  2. WHETHER THE CLAIMANTS HAVE PROVED THAT THEIR PURPORTED TRIAL AND DISMISSAL WERE UNCONSTITUTIONAL, UNLAWFUL AND NULL AND VOID. [Sic]
  3. WHETHER THERE IS RECORD OF PROCEEDINGS OF THE PURPORTED TRIAL AS REQUIRED BY THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA [Sic]
  4. WHETHER THE CLAIMANTS HAVE PROVED THEIR CASE TO BE ENTITLED TO AWARD OF GENEARL DAMAGES. [Sic]

 

Arguing issue 1, the learned counsel submitted that the defendants have no defence to this suit, which is why they raised the issue of jurisdiction at this stage. The learned counsel argued that the claimants were not tried before a court martial but rather by their Commanding Officer, Lt. Colonel R.S. Omolori, who summarily dismissed them. The learned counsel argued that, the trial before their Commanding Officer could not be equated to court martial in that, there was no proper constitution of the panel, which is supposed to have a President, Judge Advocate, who must be a lawyer and other members of the panel. The learned counsel also submitted that the lack of record of proceedings showed that there was no court martial because, court martial is a superior court of record and must have record of proceedings. The learned counsel argued that the defendants admitted in paragraphs 9 and 10 of their Statement of Defence that the claimants were summarily tried by their C.O. The learned counsel cited section 131 of the Evidence Act to the effect that, since the defendants asserted trial before a court martial, they have the burden to prove same.

The learned counsel cited section 129 of the AFA to show that the purported trial did not take place before a court martial and the unreported Federal High Court’s case of Corporal Shehu Maigari & 28 Ors v. Nigerian Army Suit No. FHC/KD/CS/68/98 to urge this Court, to assume jurisdiction. Thus, ended arguments on issue 1 and the learned counsel moved to issue 2.

Under issue 2, which deals with whether the claimants have proved the unconstitutionality of their dismissal, the learned counsel cited Article 10 of the Universal Declaration, Article 7 of the African Charter on the right to be heard. The learned counsel cited sections 115, 116 and 117 of the AFA on the right to have counsel of one’s choice under summary trial in the military. The learned counsel argued that section 124 of the AFA prescribed that on completion of investigation, the commanding officer is required to decide whether to dispose of the case either by summary trial or court martial; and where he makes the choice of summary trail, three prerequisites must be met, to wit: 1. Charges of the offences alleged must be accurately drafted; 2. The accused must be notified, at least, 24 hours to the trial; and 3. The accused must be afforded opportunity to cross-examine witnesses against him.

The learned counsel also cited section 36(4) of the 1999 Constitution on affording an accused right of fair hearing for a criminal charge. The learned counsel cited Ridge v. Baldwin (1965) 2 ALL E.R. 66. The learned counsel submitted that the claimants were denied fair hearing because Lt. Col. R.S. Omolori was the accuser, the prosecutor and the judge. The learned counsel argued further that, the prosecution did not call any witness and that; the claimants were not allowed to call their witnesses nor were they allowed to give evidence themselves and that; there was no investigation. The learned counsel argued that the trial was simply like this: “Are you guilty or not guilty”. “I am not guilty” and the commanding officer declared, “You are guilty and you are dismissed.” The learned counsel argued that this trial was in violation of the right to fair hearing. Thereafter, the learned counsel moved to issue 3.

Under issue 3, which is on lack of record of proceedings, the learned counsel argued that, section 36(7) of the 1999 Constitution and Abiodun v. A-G Federation (2007) 15 NWLR (Pt. 1057) 359 (CA) mandate that a court must keep record of proceedings; and that, where record of proceedings is missing, the only thing that an appellate court should do is to set aside the proceedings. The learned counsel urged the Court to hold that the purported trial of the claimants was unconstitutional, having violated section 36(7) of the 1999 Constitution. Thereafter, the learned counsel moved to his last issue, issue 4.

On issue 4, which is on general damages, the learned counsel was of the view that, since that claimants have shown that their trial was unconstitutional and that they were chained without foods for days and driven from Maiduguri to Kaduna and released as dismissed officers, with some of them sustaining injuries, they must be entitled to general damages. On this, the learned counsel cited Liochin Nig. Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 65 and Overseas Construction Ltd v. Creek Enterprises Ltd & Anor (1986) 3 NWLR (Pt. 407) in support. Thus, the learned counsel ended arguments on his issue 4 and moved to his further comments on issue 2 of the defendants’.

On issue 2 formulated by the defendants’ learned counsel, the learned counsel to the claimants submitted that the claims in the suit are primarily against the 1st defendant who is the employer of the 3rd and 4th defendant and that, both the 3rd and 4th defendants were joined because, the 3rd defendant instructed the 4th to carry out the actions leading to this suit. The learned counsel argued that in line with Osho v. Foreign Finance Corporations Ltd (1991) 4 NWLR (Pt. 184) 157, it was additionally important to join the 3rd and 4th defendants because they could be made to personally pay the damages and for their employer to know that they are bad officers. Thus, rested the final written address of the claimants. There being no reply filed, I move to give my decision.

However, before I do that, I wish to state that I have closely studied all the processes filed in this suit and took note of the important ones relevant to the resolution of the suit. I have equally taken firm note of the testimonies of witnesses and their demeanours. I am aware that I did not summarise the pieces of evidence led by witnesses but nonetheless, I have carefully digested the pieces of evidence and would make references to the relevant portions as occasions demand. I have also carefully studied the pleadings and the addresses of counsel to the parties; as summarised above, and consulted the important authorities cited [statutory and case law]. I proceed to give my decision.

 

COURT’S DECISION

I adopt three of the four issues formulated by the learned counsel to the claimants in deciding this case because; they covered the breadth of the issues at stake and subsumed the two narrow issues formulated by the learned defence counsel. I ignore issue 3 as formulated by the learned counsel to the claimants because; I consider it prolix. I slightly altered issue 4 to bring it in tune with the facts the case. The three issues I adopted are:

  1. Whether The Honourable Court Has Jurisdiction To Hear And Determine This Suit?
  2. Whether The Claimants Have Proved That Their Purported Trial And Dismissal Were Unconstitutional, Unlawful And Null And Void?
  3. Whether The Claimants Have Proved Their Case To Be Entitled To the Reliefs claimed?

 

ISSUE 1: WHETHER THE HONOURABLE COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS SUIT?

Before I look at the main issue of jurisdiction raised by the learned counsel to the defendants, let me look at the objection raised to the jurisdiction of this Court to entertain this suit against the 3rd and 4th defendants on account of their not being necessary parties. I need not waste time on this. I cite First Bank of Nigeria Plc v. Udoka & Ors (2015) LPELR-25835 (CA) 41-42, F-B in support of the fact that, this issue is raised belatedly, the matter having been heard on the merit to conclusion before being raised at the final written address stage. I therefore decline to entertain the objection, which I considered frivolous, in view of the fact that, even if the 3rd and 4th defendants are struck out, the 1st defendant, who is the principal of the other defendants, and who the learned counsel to the defendants conceded to be necessary party, remains. Misjoinder does not defeat a cause or matter. This point of objection is accordingly discountenanced – see CBN v. Azoro & Ors (2018) LPELR-44389 (CA), as being unworthy of consideration. I now move to the meat of the jurisdictional point raised by the learned counsel to the defendants.

The real controversy under this issue is, whether this Court has jurisdiction to entertain this action, as it is. The defence is of the view that, once it is shown that, a trial has been conducted by the court martial, by virtue of section 240 of the 1999 Constitution the Court of Appeal is the forum of any complaints against such trial, and not this Court. The claimants’ counsel, on the other hand, is of the view that, there was no trial and that, if there is; it was a summary trial not before court martial, which takes it out of the conundrum of section 240 of the 1999 Constitution; thus, leaving the jurisdiction of this Court intact. The focal point of issue 1 is section 240 of the 1999 Constitution read in conjunction with section 124 of the AFA. I therefore proceed to reproduce the said provisions of the two statutes. Section 240 of the 1999 Constitution provides thus:

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.” [Underline supplied for emphasis]

 

Section 124(1), (2) & (3) of the AFA provides thus:

“After investigation, a charge against an officer below the rank of lieutenant colonel or its equivalent or against a warrant officer may, if an authority has power under the provisions of this Part or Part XIII of this Act to deal with it summarily, be so dealt with by that authority (in this Act referred to as “appropriate superior authority”) in accordance with those provisions.

(2) After investigation, a charge against a non-commissioned officer, soldier, rating or an aircraftman may be dealt with summarily by his commanding officer subject to and in accordance with the following provisions of this Part or Part XIII of this Act.

(3) A charge not dealt with summarily shall, after investigation, be remanded for trial by a court-martial.” [Underline for emphasis]

 

When the provisions of section 240 of the 1999 Constitution are construed, especially with regard to the underlined portion, together with the provisions of section 124 of the AFA, especially with regard to the underlined portion too, it is inescapable to come to the logical conclusion that, summarily dealing with offences by commanding officers, as envisaged, cannot be trial before a tribunal contemplated by section 240 of the 1999 Constitution. The other tribunals referred to under section 240 of the 1999 Constitution, are tribunal so created by Acts of the National Assembly with jurisdiction over specific matters; for example, the Investment and Securities Tribunal. Section 129 of the AFA created the two types of Court Martial, while section 130 prescribed their jurisdiction. These are the two courts or tribunal created in the AFA. Section 133, 134, 135 and 139 prescribed the constitution and venues of trials of the two types of Court Martial. Sections 140 and 141 deal with the methods the two types of Court Martial would adopt in reaching their decisions and how they are to be announced. Several other provisions after section 124 of the AFA dealt with several other areas connected with the jurisdiction and trial before the Court Martial. From these sections construed together, it is clear that, the AFA only intended to and did, in fact, created two types of courts: the Special Court Martial and the General Court Martial.

Section 183 of the AFA took the matter beyond controversy, when it says appeal from the decision of the Court Martial shall go to the Court of Appeal. No such provision was made with regard to summary treatment of offences by the commanding officers. The law is that, the specific mention of one thing, excludes those not so mentioned – see The FRN v. Osahon & Ors (2006) LPELR-3174 (SC) 80, B-D. The specific mention of the decision of the Court Martial, as being subject to appeal to the Court of Appeal, while decisions of the commanding officers in the exercise of their powers of summary treatment of offences is not thereby subject to appeal to Court of Appeal, but merely subject to the review powers of higher hierarchy of the military [section 147 of the AFA], means, such decisions are excluded from the ambit of those that go to the Court of Appeal; and I so hold.

Further more, because the summary treatment of offences by the commanding officers is not recognised directly by 1999 Constitution, appeals from such decisions cannot go to the Court of Appeal like appeals from the decisions of the Court Martial directly recognised by the Constitution, even if the AFA so provides – see NUEE v. BPE (2010) LPELR-1966 (SC) 4-42, F-D, where the Supreme Court extensively dealt with how jurisdiction of a superior court of law could be ousted and held that, the mere fact that a statute conferred jurisdiction on the then National Industrial Court does not detract from the jurisdiction of the then High Court. By the same token, nothing in section 124 of the AFA detracts from the jurisdiction of the extant National Industrial Court of Nigeria. It should even be realised that, the AFA did not even make the commanding officer a court, albeit inferior tribunal. It follows that, the summary treatment of the offences by a commanding officer is not a court of law or tribunal established by an Act of the National Assembly, as envisaged under sections 6(5) and 240 of the 1999 Constitution, but merely an exercise of administrative authority which all chief executives or management of public institutions or departments have to discipline erring public servants. Being an administrative authority, and not a court or tribunal established by an Act of the National Assembly, its decisions, which emanate from employment relations, are subject to the jurisdiction of this Court by virtue of the combined effect of section 254C – (1)(a)-(b), (l)(ii) & (5) of the 1999 Constitution [as altered].

Since the grouse of the claimants herein is dismissal from employment, and there being no doubt that, the relationship is that of employment and that, the issue at stake arose from employment relations and in the course of employment, this Court has supervisory jurisdiction over such an administrative decision of the executives of the Armed Forces that negatively affected the employment rights of the claimants. The defendants agreed that the claimants were summarily tried by their commanding officer – see paragraphs 9 & 12 of the Statement of Defence and paragraphs 10 & 12 of the written deposition of DW1. The defendants did not give any evidence of trial before a Court Martial; and all the arguments of their counsel that they were duly tried in accordance with military law or the AFA did not cite the relevant provisions of the AFA or any other law that made the trial, one before the Court Martial, and I have not found one. It follows that, all the arguments of the learned counsel to the defendants on section 240 of the 1999 Constitution that, it outs the jurisdiction of this Court to entertain this matter, are grossly misplaced; and they hereby dismissed as totally lacking in merit.

However, I come back to section 147 of the 1999 Constitution earlier on alluded to. The mere fact that I have held that section 240 of the 1999 Constitution is inapplicable in the instant case and that it does not oust the jurisdiction of this Court to entertain this matter has not, ipso facto, solved the issue of lack of jurisdiction on the part of the Court to entertain this matter, as presently constituted. A court might have substantive jurisdiction to entertain a particular subject matter yet, still lack jurisdiction to proceed, not because of any intrinsic lack of jurisdiction but because of failure to satisfy condition precedent by the claimant. In such instance, the jurisdiction of the Court is there but it is not properly activated – see Madukolu & Ors v. Nkemdilim (1962) LPELR-24023 (SC) 9-10, F-D. This observation stems from the provisions of section 147 of the AFA, which seems to contain a condition precedent to the proper activation of the jurisdiction of this Court by the claimants on their grievances. The section provides thus:

“147. (1) Where a charge has been dealt with summarily and the charge is not dismissed, the authority specified in subsection (4) of this section may review the finding or award either upon a petition submitted under subsection (2) of this section or at any time if facts material to the case arise which were not available during the trial.

(2) A person convicted and sentenced summarily may petition against the finding or award or both to the authority not later than one month after the finding or award was made.

(3) Where on a review under this section, it appears to the authority-

(a) expedient so to do by reason of any mistake in the proceedings on the summary dealing with the charge or anything occurring in those proceedings which, in the opinion of the authority, involved substantial injustice to the accused, the authority may quash the finding, and if the finding is quashed, the authority shall also quash the award.

(b) that a punishment awarded was invalid or too severe or (where the award included two or more punishments) that those punishments or some of them could not validly have been awarded by substituting such punishment or punishments as the authority may think proper, being a punishment which could have been included in the original award.” [Underlines supplied for emphasis]

 

It is very obvious from the above provisions that section 147 of the AFA gives the aggrieved officers one month to protest summary decisions of the commanding officers. It states that the complainant could petition against the finding or the award of the commanding officer or both and that; the reviewing authority could set aside such decision of the commanding officer on the grounds of mistake of law or anything that occurs in the proceedings. I observed that the counsel to the parties did talk about this section and concentrated only on sections 240 of the 1999 Constitution and 124 of the AFA, on canvassing arguments for and against jurisdiction. Being that the parties have raised and argued issue of lack of jurisdiction, the Court is at liberty therefore to cite any provisions of the law in support of or against the proposition of lack of jurisdiction already raised, albeit on another ground. The Court could also raise the issue of lack jurisdiction suo motu, even if not already raised, and decide it suo motu. This becomes more so, in that, the parties have raised and argued the issue of jurisdiction in the suit – see Shittu v. Kwara State Polytechnic, Ilorin & Ors (2014) LPELR – 23820 (CA) 27-28, paras. F-A; and Omokuwajo v. FRN (2013) LPELR-20184 (SC) 38, paras. A-C. It is in view of the above principle of law contained in these authorities that I proceed to cite and rely on section 147 of the AFA suo motu to decide to finality the issue of whether the Court has jurisdiction to entertain this matter.

It would be observed that, the complaints of the claimants herein all centred on mistake of law in the procedure the defendants adopted to dismiss the claimants summarily. There is no denying the fact that, the claimants were summarily dismissed on the allegation against them. But I need to observe at this junction that, throughout the whole gamut of the sections of the AFA that deal with the power of the commanding officer to summarily deal with officers accused of committing certain offences, the AFA used the word ‘trial’ or ‘summary trial’ scantily. It did in section 147 (1) once and mentioned ‘convicted and sentenced summarily’ once in subsection (2). Instead, it employed the less technical terms of ‘summarily dealt with’ and ‘award’. I think the omission to use the less technical terms, which conduce to administrative civil trials, is for a purpose, which unfortunately is lost on the learned counsel on both sides. It reinforces the fact that the power to be so exercised by the commanding officer is not summary trial in the proper sense of summary trial before a court of law or tribunal properly so established and constituted. In a nutshell, it reinforces the fact that the commanding officer is not a court or tribunal properly so established and constituted in law. It would be observed that after using the phrase ‘convicted and sentenced summarily’, the subsequent subsections of section 147 reverted to and replaced the phrase with ‘award’, which is more appropriate to administrative civil decisions.

The earlier this fact is understood, the better in dealing with the power conferred on the commanding officers to summarily deal with some offences and offenders. I think, in this, we should take into consideration the special nature of military services, especially in relation to misconducts allegedly committed in the course of prosecution of wars [section 120 of the AFA]; and in particular relation to section 45 of the 1999 Constitution. Section 45 of the 1999 Constitution warrants some deviations from the fundamental rights provisions of the 1999 Constitution; and to a debatable extent, inclusive of deviation from the right of fair hearing because, the only right of fair hearing given absolute toga, is subsection 36(8). I think in this, we have to put more emphasis on the provisions of the AFA that deal with the procedure to be followed in exercising the summary power of the commanding officers, otherwise, we might unwittingly create a scenario where it would be impossible for commanding officers to successfully prosecute wars. For, without special powers, devoid from civil occasions, it would not be possible to prosecute wars. Special situations demand special powers. That is how the provisions of the AFA must be viewed. Care must therefore be taken not to unnecessarily import summary trial, with all its trappings at courts or tribunals properly so constituted into the provisions of section 124 of the AFA. So, the importation of summary trial should be recognised as importation of the counsel to both sides, as an offshoot of legal mentality fixated on trials in the regular courts. Let us look at what the AFA provides.

I think the power of the commanding officers to summarily treat offences that fall under their purview should be seen in the nature of the powers of the chief executives of public services to summarily deal with misconducts committed in the course of employment, even inclusive of pure crimes, where the facts are incontrovertible or where the alleged employee-offender admits the commission of such offences. In such instances, the employees could be summarily dealt with without trial in courts, notwithstanding the commission of crimes – see Dongtoe v. CSC, Plateau State (2001) LPELR-959 (SC) 34-35, E-G and other connected authorities: Eigbe v. N.U.T. (2008) 5 NWLR (Pt. 1081) 610 at 628 and Arinze v. FBN (2004) LPELR-551 (SC). This is a power which the executives or chief executives of various government institutions and departments have always had – see sections 10(1) & (2) and 11(b) of the Interpretation Act.

Be that as it may, it is my respectful view that section 147 of the AFA is a condition precedent to the institution of actions in courts against summary decisions of commanding officers against officers under their commands. It protects the rights of such officers to make complaints on any infringement of their rights in the course of trial, and gave the reviewing authorities wide powers to redress injustices, inclusive of redressing breach of fair hearing. If an officer failed to avail himself of its provisions, it means s/he has condoned the non-compliance being complained against; and cannot thereafter jump this internal avenue for redress to approach the Court. That is what the AFA provides to safeguard the interests of its officers under summary trials. Both sides to the fray are bound by AFA and cannot be heard to attempt to sidetrack its provisions. So, the internal mechanism provided by section 147 of the AFA for junior officers to redress any miscarriage of justice in summary awards against them ought to and must be explored first before this Court can properly assume jurisdiction over such complaints.

Expatiating on the need to explore internal dispute resolution mechanisms before approaching the judicature to ventilate grievances, the Supreme Court held in Owoseni v. Faloye & Anor (2005) LPELR-2856 (SC) 37, A-B that:

“…where an aggrieved party has not resorted to the remedies statutorily available to him on the infringement of his alleged right by the prescribed authority, such a party has therefore not exhausted the remedies available to him and has in consequence not satisfied the preconditions for access to court.”

 

That is the position of law on failure to explore internal dispute resolution mechanism before rushing to Court. Now, the question is: did the claimant satisfy the requirement of section 147 of the AFA, which provides for right of aggrieved officers subject to summary decisions of commanding officers to petition for review of such decisions? The answer is to be gotten from the pleadings and evidence adduced by the claimants; and if challenged, by a resolution of the contrary evidence of the defendants put side by side that of the claimants. I have combed through the whole of the Further Amended Statement of Facts, I could not find any pleadings relating to writing a petition to any internal organ of the 1st defendant to redress the alleged illegalities and irregularities complained against. The only thing I found in the last unnumbered paragraph of the Further Amended Statement of Facts is that, the Task Force Battalion has confirmed the purported unlawful dismissal. When this confirmation was done is not stated. Two witnesses testified for the claimants:  CPL Julius Abiodun [CW1] and CPL Irabor Ukadike (CW2). In the written deposition of CW1 made 7th March 2016, it was stated, “that we have petitioned the Chief of Army Staff, but we have not received any reply.” Similar paragraph is found at paragraph 22 of the written deposition of CW2 made 7th March 2016; with the addition, this time around, of the date 8/1/2016, as the date the petition was sent. That is all about the pleadings and the evidence on the petition to the Chief of Army Staff on the dismissal of the claimants.

First, let me observe that, no pleading relates to these pieces of evidence on the alleged petition contained in paragraph 22 of the written depositions of both CW1 and CW2. It is trite that, evidence on unpleaded fact goes to no issue – see Emegokwue v. Okadigbo (1973) LPELR-1124 (SC) 5-7, E-D. As the claimants did not plead that they petitioned the Chief of Army Staff, the defendants did not plead anything in reaction to this in the Statement of Defence. That is how it should be.  So, it was wrong for the claimants to go ahead to give any evidence in that regard. Besides this, I equally did not even find the evidence adduced to signify anything. The first of the two pieces of evidence just blankly stated they petitioned the Chief of Army Staff but failed to state the date. The second stated the date but, both did not state by which means it got to the Chief of Army Staff and how it was received; and both witnesses did not allude to copy or copies of the said petition(s) and did not tender any to show that it/they was/were indeed written. Both witnesses did not also tender any evidence to show that the purported petition[s] was indeed received by the Chief of Army Staff.

Equally important is that fact that no notice was given to the defendants to produce same. Exhibit C1, which is the signal of confirmation of the dismissal, did not contain the date it was made. So, it is impossible to determine whether it was made before the claimant exercised their right to appeal to the reviewing authority. The evidence that they wrote to the Chief of Army Staff shows that the claimants are groping around making inconsistent case apart from leading evidence on unpleaded fact. They must rise or sink with it. A document is the best evidence of its contents and oral evidence of its contents is not ordinarily admissible, except on special conditions, which is not applicable here – see Eneche v. Airtell Networks Limited (2015) LPELR-40400 (CA) 15-16, C-B. The implication of not tendering a copy of the purported petition to the Chief of Army Staff or of failure to give notice to the defendants to produce it and the failure to tender evidence of its receipt by the Chief of Army Staff, is tantamount to non-existence of the said document – see Emeka v. Chuba-Ikpeasu & Ors (2017) LPELR-41920 (SC) 27-28, E-B:

“In the case of Buhari v. Obasanjo for instance at pages 198-199 Belgore, JSC (as he then was) said: – “In notice to produce procedure, it is supposed that the person asking for the document knows of the contents, perhaps has a copy of it. If the person to produce fails to produce it, the secondary evidence of it can be admitted in evidence. Chief John Ukpa of the ANPP, if he actually wrote the letter of protest in question, he could bring the copy of it for admission. Either the letter did not exist or it existed but Chief John Ukpa refused to bring its copy. If he brought the copy, the presumption can as well be that the contents would not have supported the case of the appellant.” [Underline supplied for emphasis]

 

Having reached this juncture; the consequence is that, the claimants either did not write any such letter and if they did, it was never sent to the alleged recipient. This is thus an infringement of the provisions of section 147 of the AFA, by bypassing the internal dispute resolution mechanism ably provided by section 147 of the AFA and rushing to this Court against the law. This is equal to failure to obey a condition precedent and thus, the action is incompetent; and the incompetence has negative implications on the jurisdiction of the Court to look into the grievances of the claimants herein. In a nutshell, the Court lacks jurisdiction to entertain the suit. The suit is hereby declared incompetent for failure to explore internal administrative remedy before coming to Court.

Nevertheless, before I round up, let me offer my opinion on the merit of the case, in case the Court of Appeal overrules me on my decision that the Court lacks the jurisdiction to entertain the case. This takes me to issue 2.

 

ISSUE 2: Whether The Claimants Have Proved That Their Purported Trial And Dismissal Were Unconstitutional, Unlawful And Null And Void?

The main grouses of the claimants under this issue are that, the defendants failed to observe fair hearing in their dismissal, that the defendants failed to produce the record of proceedings and that this is fatal to the defence; and that; the allegations against the claimants were false. The first two, as they are, are external to the facts of the case. They are all about failure to follow the proper procedure. Like I have observed earlier on, fair hearing in the instant case, is to be determined in accordance with the provisions of the AFA to the extent allowed by the proviso to section 45(2) of the 1999 Constitution.

The first point raised against the defendants by the learned counsel to the claimants is that, three prerequisites ought be followed after the commanding officer had made up his mind to treat the offences summarily in accordance with section 124 of the AFA and that the commanding officer failed to do these. In relation to the three prerequisites that the charge must be accurately drafted, the officer given at least 24 hours to respond and afforded opportunity to cross-examine and field witnesses; what I found is that, depending on the situation, it might not be necessary to call witnesses where the offences were committed in the presence of the commanding officer and tried summarily. This is akin to the powers of the courts to punish contempt in facie curiae proprio motu. This, I think, is deducible from section 115(1), which provides that summary trial may be carried out at the time of the commission of the offence or at the time of trial. If summary trial could be carried out at the time of the commission of the offence, without delay, it is clear that, this can only mean tried and sentenced proprio motu. It is therefore my view that investigation before trial only applies to offences reported and not those that happened in the presence of the commanding officer and tried proprio motu.

However, I found that section 117 of the AFA provides that an officer, a warrant or petty officer cannot be summarily tried by his commanding officer, until he has be given opportunity to elect in writing whether to be tried by court-martial. To me, this means the offender has a right to elect whether or not to submit to the jurisdiction of the commanding officer to try him summarily. Failure to give this opportunity must be fatal to the case of the defence because failure in this respect is failure to adhere to the prescription of the AFA. Cases are replete that where the law prescribed a particular procedure to be followed in the punishment of employee in an employment clothed with statutory flavour, the procedure must be scrupulously followed to the letter to sustain such punishment – see Federal Medical Centre, Ido-Ekiti & Ors v. Alabi (2011) LPELR-10931 (CA) 70-71, F-B. The employment in issue is no doubt, one clothed with statutory flavour as clearly evidenced in the provisions of AFA. The trial is therefore bad and liable to be set aside for this reason. Be that as it may, I move the effect of absence of record of proceedings of the summary trial.

I am also of the view that however rudimentary it might be, some sort of record of proceedings of the summary trial must be kept. This I think is buoyed up by the provisions of section 124(5)(b)&(c) of the AFA. If the commanding officer is to determine whether the accused is guilty and thereafter, if guilty, record the guilt and award punishment then, some sort of evaluation of evidence in relation to the section infringed is implied. It simply means that, the trial and conviction must be rationalized.

This conclusion cannot be escaped in view of the provisions of section 147 of the AFA, which gives the reviewing authority power to review summary findings and awards. It should be noted that, it is on the basis of findings that punishments are awarded; and findings could only be arrived at, by evaluation of evidence. If the findings and awards of summary trials are subject to review then, it means some sort of record of proceedings must be kept and transmitted to the reviewing authority for a review. To review something means to critically look at something already in existence for the purpose of criticisms or effecting corrections and not to carry out further primary investigation. It seemed to me clear that, the reviewing authority’s power to review is not by way of rehearing of evidence and another arraignment but by way of examination of the evidence on the record of proceedings alongside the findings and awards made. I think it is only when new facts come up, which was not available at the time of the trial that it might be necessary for the reviewing authority to take evidence. In view of this, I am in total agreement with the learned counsel to the claimants that there is need to produce the record of proceedings for this Court to see what actually transpired. The defendants have admitted that the record is lost due to fire at where it was kept – see evidence of DW1 under cross-examination on 26th March 2019 and paragraph 16 of his written deposition adopted in Court on 26th March 2019. Now that the defendants admitted the loss of the record of proceedings, the claimant had not a duty to tender a non-existent record; and the fact of its loss not being that of the claimants, the claimants are entitled to have the summary trial set aside – see Abisoye v. The State (2016) LPELR-40148 (CA) 7-13, E-B. Be that on the legal effect of absence of record of proceedings on the purported trial, I shall now examine the evidence on record to see if the claimants proved their case.

It is clear too, from the pleadings and evidence adduced that the alleged offences were not tried the very day and very moment they were allegedly committed, as the defendants claimed the claimants were detained pending investigations. The implication of this is that, the offences were not tried proprio motu and therefore, witnesses ought to be called and were not called. I also observed that, the sole witness of the defendants was not an eyewitness, as such, his evidence amounts to hearsay evidence and therefore of no value. In his written deposition, he stated clearly at paragraph 2 therefore that he only knew about the case because signal for the trial was sent through his office, 82 Division, Enugu. Therefore, his testimony at cross-examination on 26th March 2019 that he was there at Gubio when the incident happened could not be true. It follows that; there is really no evidence against the evidence of the claimants. This shows that DW1 is not a witness to be believed. In effect, the defence did not effectively rebut the evidence of the claimants that Brigadier General Saharam did not give any order to proceed, which they disobeyed. I therefore agree with the claimants that their story is true; and that, it was logically impossible since Brigadier General Saharam was not there with them at the war front at Damasak, and only came days after they had retreated – see paragraphs 5 & 6 of the written deposition of DW2 adopted in Court on 25th March 2019 and paragraphs 3-5 of the Reply to the Statement of Defence. The implication is that the purported trial was on a trumped-up charge. In view of all these shortcomings, the claimants must be adjudged to have proved their case by preponderance of evidence and therefore entitled to some reliefs. This takes me to issue 3.

 

ISSUE 3: WHETHER THE CLAIMANTS HAVE PROVED THEIR CASE TO BE ENTITLED TO THE RELIEFS CLAIMED?

There is no argument on the fact that the employments in issue are imbued with statutory flavours. The law is that once allegations of unlawful dismissal are proved in employments that are statutorily clothed, the necessary reliefs granted are reinstatement to the status quo ante and payment of arrears of salaries – see Maliki v. Michael Imodu Institute for Labour Studies (2008) LPELR-8467 (CA) 51-54, A-A. In effect, the claimants are all entitled to reliefs 1, and 3, to the extent of reinstatement and payment of arrears of salaries and allowances, devoid from ordering promotions. Promotions are not granted as a matter of course. Special case must be made for it in the pleadings and evidence before the Court; and none exist in the instant case to warrant the grant of promotion. I therefore refuse to order the defendants to promote the claimants. With regard to relief 2, which wants the dismissal of the 2nd claimants converted to retirement, I don’t think the issue is as simple as that. The 2nd claimant has not shown to me under which law or rule he has become entitled to retirement and that he has complied with the procedure for retirement. This is an employment clothed with statutory flavour, more so, military service with special rules and regulations that fully regiment all aspects of the service.

Since the 2nd claimant has failed to show under which rules he is asking the Court to convert his dismissal to retirement, and has not shown that he has reached the retirement age or length of service, he is not entitled to the said relief 2. And I so hold. If the 2nd claimant wishes to retire he must do that after reinstatement and compliance with any necessary prerequisites. The claimants are not also entitled to relief 4 because reinstatement is the measure of damages grantable where there is proof of unlawful termination of employment clothed with statutory flavour; and I so hold. I also would not grant relief 5, asking for apology. I think reinstatement has sufficiently assuaged the feelings of the claimants. No special case was made for the grant of this relief. That is all about rationalization of the reliefs I ought to or not to grant had I not held earlier that the suit is incompetent.

In a nutshell, were it that the Court of Appeal overruled my holding that the action is incompetent by reason of failure to fulfill conditions precedent, I grant following reliefs for the avoidance of doubt. I grant relief 1 in totality by setting aside the dismissal of the claimants. I grant relief 3 in part by ordering the reinstatement of the claimants with payment of the arrears of their salaries and allowances. I refuse to order any promotion. I refuse in totality reliefs 2, 4 & 5.

I have shown what I my thoughts on the aspects of the case are, if per chance, the Court of Appeal overrules my decision on the incompetence of the action to avoid the possibility of ordering retrial which would be inevitable if I had failed to consider the other aspects of the case. I must now conclude the case by stating in emphatic terms what my final decision is.

But before that, let me state that I declined to countenance the case of Maigari v. Nigerian Army [supra], a purportedly unreported decision of the Federal High Court cited by the learned counsel to the claimants. I had observed on 20th September 2019 when I was supposed to deliver this judgment that no copy of the judgment was furnished the Court, whereas, the law required that a certified true copy be given to the Court; and adjourned on this ground for a certified true copy of the unreported decision to be furnished the Court. The learned counsel furnished me with a copy of the purported judgment through the Court’s clerk: Anthony Ugwu yesterday the 26th September 2019. However, I found that the copy of the purported judgment brought to me was not certified in accordance with the law. It merely had a stamp, name of the officer purportedly certifying it and date: at the first and last page alone. There is neither any evidence of payment of the certification fee nor the designation of the certifying officer. The copy is therefore not a certified true copy of the judgment; and I cannot take cognisance of it since I cannot vouch for its veracity – see Yusuf & Ors v. Toluhi (2008) LPELR-3533 (SC) 6-7, G-A.

 

CONCLUSION

I have earlier found that the action is incompetent in that the claimants failed to explore the internal dispute resolution mechanisms provided in section 147 of the AFA. The effect of this is that the action is premature. Its prematurity negatively affects the jurisdiction of the Court. The Court thus lacks jurisdiction to examine the grievances of the claimants. This suit is hereby and accordingly struck out for want of jurisdiction. I award no cost.

The above is the judgment of this Court. Judgment is accordingly entered.     

 

 

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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