MOHAMMED v. NIGERIAN ARMY COUNCIL & ANOR (2021)

MOHAMMED v. NIGERIAN ARMY COUNCIL & ANOR

(2021)LCN/15198(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/A/606/2017

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

CPL AMINU MOHAMMED APPELANT(S)

And

1. THE NIGERIAN ARMY COUNCIL 2. THE CHIEF OF ARMY STAFF RESPONDENT(S)

RATIO

WHETHER THE COURT MUST DECIDE ALL ISSUES PROPERLY RAISED AND SUBMITTED TO IT BY THE PARTIES FOR DETERMINATION

Generally speaking, a Court has a duty, as a matter of fact an obligation to consider and decide all issues properly raised and submitted to it by the parties for determination in every dispute before it. The law specifically requires that a Court should confine itself, as of necessity to the issues raised by the parties in a dispute before it; see ATANDA V. AJANI (1989) 3 NWLR (111) 511, OKONJI V. NJOKANMA (1991) 7 NWLR (202)131 and EDEM v. CANON BALLS LTD (2005) ALL FWLR (276) 693 @ 706. Having said that the law also makes exceptions to this position of the law by granting the Court the power to disregard and ignore issues raised in the parties’ briefs of argument if it considers them irrelevant, so as not obscure the main or real issues that require determination in the case; See NWOKORO V. ONUMA (1990) 3 NWLR (136) 22 and YAKUBU V. GOVERNOR OF KOGI STATE (1997) 7 NWLR (571) 66 @ 92. PER MOHAMMED MUSTAPHA, J.C.A.

INTERPRETATION OF SECTION 32 (3) OF THE ARMED FORCES ACT AS REGARDS WHETHER THE AUTHORITY OF THE SERVICE CHIEF IN ACCORDANCE WITH REGULATIONS MADE UNDER THE ACT WITH RESPECT TO DISCHARGING AN ENLISTED PERSON CAN BE DELEGATED

The Appellant’s major grouse is that exhibit A1, the letter of discharge was not signed by the 2nd Respondent, even though it appeared to have been signed effectively by the chief of army staff, by reason of the fact that it was indeed signed by one RJ Alexander, a colonel, for the Chief of Army staff. Section 32 (3) of the Armed Forces Act for the avoidance of doubt provides: “Except in pursuance of a sentence of a Court martial under this Act, an enlisted person shall not be discharged unless his discharge has been authorized by order of the respective service chief in accordance with regulations made under this part of this Act.” Furthermore, Section 291 of the same Act defines ‘service chief’ to mean chief of army staff, chief of naval staff and the chief of air staff; delegation of authority is not new or unheard of in army leadership; the Supreme Court took this approach in the interpretation of the armed forces Decree 1993 in support of delegation of authority; see STATE V. OLATUNJI (2003) LPELR-3227-SC and ANAKWENZE V. ANEKE & ORS (1985) LPELR-481-SC. PER MOHAMMED MUSTAPHA, J.C.A.

INTERPRETATION OF SECTION 35 OF THE ARMED FORCES ACT AS TO WHEN EMPLOYMENT OF AN ENLISTED PERSON CAN BE DISCHARGED

The objective of the trial Court in its analysis lay bare the nature of the Appellant’s employment as an enlisted person, that is why it admirably set out and considered Section 35 of the Armed Forces Act, which provides for the disengagement of enlisted persons, as it provides: “Any enlisted person may be discharged at anytime by a competent service authority during his engagement.” This provision clearly shows that the appellant’s employment was not fixed in nature in the service of the 1st respondent, in contrast to the position of a public servant; see CONTROLLER GENERAL OF CUSTOMS V. GUSAU (2017) 18 NWLR part 1598 page 385 and BAUCHI STATE JUDICIAL SERVICE COMMISSION V. DANJUMA (2017) NWLR PART 1565 PAGE 432. Section 35 of the Armed Forces Act makes the nature and character of the appellant’s employment abundantly clear; an enlisted person may be discharged at anytime by a competent service authority. In an employer/employee dispute, it is the applicable conditions of service or any other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties. Accordingly, the condition of service is the bedrock of the contract of employment. It therefore means that, where there are documents or series of documents which stipulate the terms and conditions of any employment contract, no Court should look outside those terms and conditions as stipulated in the document in deciding the rights and obligations of the parties to the agreement; See JOWAN & 77 ORS V. DELTA STEEL COMPANY LTD (2013) 1 A.C.E.L.R. P.18 AND MR. S. ANAJA V. UNITED BANK FOR AFRICA PLC (2014) A.C.E.L.R. P.78. PER MOHAMMED MUSTAPHA, J.C.A.

POSITION OF THE LAW REGARDING THE NATURE OF AN ERROR IN THE JUDGMENT OF A TRIAL COURT THAT WILL VITIATE OR VOID IT ON APPEAL

It is very important not to lose sight of the fact, and the position of the law that judgments are matters of style, what counts at the end of the day is substance. Even where there is some error by the Court, the Supreme Court had long established the principle of our jurisprudence in a plethora of cases including GARUBA V. K.I.C. LTD. (2005) 5 NWLR (PT.912) 460 AT 488, IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 14 NWLR (PT.584) 1, BANKOLE V. PELU (1991) 7 NWLR (PT.211) 523; UKAEGBU V. UGOJI (1991) 6 NWLR (PT. 196) 127 AND OKOLO V. MID-WEST NEWS PAPERS CORPORATION (1997) S.C. 33; that it is not every error in the Judgment of a trial Court that vitiates or voids the Judgment unless it is demonstrated that the error had occasioned a miscarriage of justice in the sense that if the error had not occurred, the judgment should have been different or otherwise. PER MOHAMMED MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of National Industrial Court, Abuja, coram Hon Justice E.D.E. Isele delivered on the 28th of October, 2016; wherein the Appellant claimed the following reliefs against the Respondents as per pages 1 to 6 of the record of appeal:
“(a) A DECLARATION that the retirement of the Claimant by the Defendants on the 19th of April, 2011 a day after he was discharged and acquitted by the Court of Appeal, Lagos is unwarranted, unlawful and unconstitutional, illegal and void.
(b) A DECLARATION that the Claimant has not committed any wrong nor attained retirement age to warrant retirement by the Defendants.
(c) AN ORDER compelling the Defendants to reabsorb the Claimant into the service of the Nigerian Army with immediate effect.
(d) AN ORDER directing the Defendants to pay to the Claimant all his salaries and entitlements since his detention in 1999 till date.
(e) AN ORDER directing the Defendants to promote the Claimant to be at per with his colleagues in service having been absolved of any wrong doing by a competent Court since his

detention in 1999 till date.
(f) Cost of this suit assessed at N5,000,000.00 only (see pages 1 to 6 of Record of Appeal).”

The Respondents filed their statement of defense dated 3rd of September, 2013, and the appellant filed a reply thereto as per page 124 to 127 of the record of appeal.

The Appellant testified on his own behalf and was cross examined; while the Respondent called one witness who was also crossed examined; see pages 206 to 215 and 219 to 224 of the record of appeal respectively.

The trial Court’s judgment was delivered on the 28th of October, 2016 in favour of the Respondents; the judgment is at pages 229 to 239 of the record of appeal.

Dissatisfied with the decision of this Court, the Appellant appealed to this Court by a notice of appeal filed on the 11th of January 2017 on the following grounds as per pages 240 to 242 of the record of appeal:
GROUNDS OF APPEAL
GROUND 1
The learned trial judge erred in law when he held that the Respondents acted within its statutory power to have discharged the Appellant even when the trial Court failed to consider the issue of the Respondents failure to comply

with Section 32(3) of the Armed Forces Act (AFA) Cap 20, LFN 2004 and Armed Forces of Nigeria Harmonized Terms of Condition (HTACOS) (Soldiers/Ratings/Airmen) (2012) (Revised) raised by the Appellant and this occasioned miscarriage of justice.
GROUND TWO:
The learned trial judge erred in law when he proceeded to resolve issue of the discharge of the appellant without resolving or determining the issue of right of the Appellant to freedom from discrimination raised during trial.
GROUND THREE:
The learned trial judge erred in law when he applied the rule of master and servant to a statutory employment even when he failed to consider the nature of the Appellant employment raised at the trial Court.

From these grounds of appeal, the following issues were formulated for determination on behalf of the Appellant by Ugbde Idachaba Esq., in the brief dated and filed on the 27th of October, 2020:
ISSUE FOR DETERMINATION
1. Whether the learned trial judge was right in law when he failed to consider the issue of failure of the respondents to follow due process and Section 32(3) of the Armed Forces Act (AFA) Cap, 20 LFN 2004 AND Armed

Forces of Nigeria Harmonized Terms of Condition (HTACOS) (Soldiers/Ratings/Airmen) (2012) raised by the appellant thereby reaching the appellant right to fair hearing. (This is distilled from Ground one of the Notice of Appeal.)
2. Whether the learned trial judge was right when he proceeded to resolve the issue of the discharge of the appellant without resolving or determining the issue of the right of the Appellant to freedom from discrimination raised during trial. (This is distilled from Ground two of the Notice of Appeal.)
3. Whether the learned trial judge was right when he failed to consider the nature of the appellant employment raised during trial. (This is distilled from the ground three of the Notice of Appeal.)

In response Kalu Onuocha Esq., of counsel for the Respondents filed a lone issue for determination of this Court in the Respondent’s brief filed on the 26th of November, 2020 as follows:
Whether the Appellant was denied fair hearing by the lower Court?
The Appellant’s reply brief was filed on the 7th of December, 2020.

The appeal will be determined on the issues formulated for the Appellant

ISSUES ONE, TWO & THREE:
-Whether the learned trial judge was right in law when he failed to consider the issues of failure of the respondents to follow due process and Section 32 (3) of the Armed Forces Act, Cap 20,2004 and armed forces of Nigeria harmonized terms of condition 2012 raised by the appellant thereby breaching the appellant’s right to fair hearing.
-Whether the learned trial judge was right when he proceeded to resolve the issue of the discharge of the appellant without resolving or determining the issue of the right of the appellant to freedom from discrimination raised during trial.
-Whether the learned trial judge was right when he failed to consider the nature of the appellant’s employment raised during trial.

It is submitted for the Appellant that the Court must consider and pronounce on issues properly submitted before it for determination by the contending parties; RAMADA INT. & PHARMACEUTICAL LTD V. EZEONU (2016) 14 NWLR part 1533 page 339; HONEYWELL FLOUR MILLS PLC V. ECOBANK NIG LTD (2016) 16 NWLR part 1539 page 387 and COOKEY V. FOMBO (2005) 15 NWLR part 947 page 182.

That the Appellant raised the issue of the failure of the Respondents to comply with due process in paragraphs 9,12 and 13 of the statement of claim and Section 32 (3) of the Armed Forces Act and harmonized conditions of service in the final address and the trial Court failed to consider these issues.

That the failure of the trial Court to consider all the issues raised by the Appellant amounted a breach of the appellant’s right to fair hearing; C.K.W MC LTD V. AKINGBADE (2016) 14 NWLR part 1533 page 487.

That even though a Court is expected to determine all issues raised before it, the trial Court failed to address the breach of the appellant’s freedom from discrimination done in violation of Section 42 of the 1999 Constitution, as amended, when he was retired from the army by the Respondent;EDIRU V. FRSC (2016) 4 NWLR part 1502 page 209 and GARBA V. MOHAMMED (2016) 16 NWLR part 1537 page 144.

That also the Appellant raised the issue of the nature of his employment which the trial Court failed to resolve, thus denying him fair hearing; ALH MOHAMMED OGBE V. KOGI STATE GOVRNMENT & ORS CA/A/96/2014.

It is submitted for the Respondents in response,

while referring to MEKWUNYE V. LOTUS CAPITAL LTD (2018) LPELR-45546-CA and DUZU V. YUNUSA (2010) LPELR- 8989-CA that the trial Court considered all material issues joined by the parties in their pleadings and issues formulated in the addresses and resolved them at page 234 to 239 of the record of appeal.

That the trial Court embarked on the task of determining whether the actions taken by the respondents were consistent with relevant laws while specifically referring to the said laws; the fact that the trial Court did not agree with the Appellant is not a basis for saying that the Appellant was denied fair hearing.

That the question of the breach of the Appellant’s right to freedom from discrimination is a question of fact that was not raised in the pleadings, and parties did not join issues on same; as well as the fact that the right to freedom from discrimination is not a right at large because there has to be a basis for comparison of treatment;AIRTEL NETWORKS LTD V. GEORGE (2015) 4 NWLR part 1448 page 60.

That the issue of the breach of Section 42 in relation to the Appellant by the Respondent was not pleaded at the lower Court, thus

parties did not join issues on it at trial and no evidence was led by the appellant in proof, with counsel only alluding to it at final address.

RESOULUTION OF ISSSUE ONE, TWO & THREE:
Generally speaking, a Court has a duty, as a matter of fact an obligation to consider and decide all issues properly raised and submitted to it by the parties for determination in every dispute before it. The law specifically requires that a Court should confine itself, as of necessity to the issues raised by the parties in a dispute before it; see ATANDA V. AJANI (1989) 3 NWLR (111) 511, OKONJI V. NJOKANMA (1991) 7 NWLR (202)131 and EDEM v. CANON BALLS LTD (2005) ALL FWLR (276) 693 @ 706.
Having said that the law also makes exceptions to this position of the law by granting the Court the power to disregard and ignore issues raised in the parties’ briefs of argument if it considers them irrelevant, so as not obscure the main or real issues that require determination in the case; See NWOKORO V. ONUMA (1990) 3 NWLR (136) 22 and YAKUBU V. GOVERNOR OF KOGI STATE (1997) 7 NWLR (571) 66 @ 92.

It is clear from the record of appeal that the trial Court took

time to review the issues joined by the parties in their pleadings, as well as their respective briefs; see pages 230 to 239 of the record of appeal. The Court went further to review the evidence adduced by the Appellant, admirably; see pages 230 to 233 of the record of appeal.

The Appellant’s major grouse is that exhibit A1, the letter of discharge was not signed by the 2nd Respondent, even though it appeared to have been signed effectively by the chief of army staff, by reason of the fact that it was indeed signed by one RJ Alexander, a colonel, for the Chief of Army staff.
Section 32 (3) of the Armed Forces Act for the avoidance of doubt provides:
“Except in pursuance of a sentence of a Court martial under this Act, an enlisted person shall not be discharged unless his discharge has been authorized by order of the respective service chief in accordance with regulations made under this part of this Act.”
Furthermore, Section 291 of the same Act defines ‘service chief’ to mean chief of army staff, chief of naval staff and the chief of air staff; delegation of authority is not new or unheard of in army leadership; the Supreme Court took this

approach in the interpretation of the armed forces Decree 1993 in support of delegation of authority; see STATE V. OLATUNJI (2003) LPELR-3227-SC and ANAKWENZE V. ANEKE & ORS (1985) LPELR-481-SC.
The issues of the entitlement of members of the armed forces are as embodied in Chapter 9.02 of the Harmonized Terms and Conditions of Service for the Nigerian Armed Forces Officers.
Contrary to the contention of learned counsel for the appellant, the trial Court took time to properly evaluate the appellant’s case in relation to the reasons given for his discharge, with reference to relevant provisions. Thus finding, while resolving the issue that with reference to Sections 32 (1) (3) and 35 of the Armed Forces Act:
“…I am convinced that given the circumstances of the claimant’s case, the defendant was within its rights as statutorily provided to discharge the claimant the way they did…”
Having already at exhibit A1 that the appellant’s services were no longer required; the trial Court was right to arrive at the conclusion that, the law does not force a willing servant on an unwilling master; special as the nature of employment does

not appear to have statutory flavour, because discharge is at the pleasure of the chief of Army staff in this instance; See COLLEGE OF MEDICINE V. ADEGBITE (1973) 5 SC. SEE ALSO NIGERIA AIRWAYS LTD. V. YAHAYA AHMADU (1991) 6 NWLR (PT. 198) AT 493 and AFRI-BANK NIGERIA PLC. V. CHRISTOPHER OBI NWUAEZE (1988) 6 NWLR PT. 553 AT 286.

The right to freedom from discrimination is a fundamental right provided for in Section 42 of the 1999 Constitution, as amended. Questions in relation to that provision are jurisdictional in essence and can be raised at any point in time, notwithstanding the protestations of learned counsel for the respondent; See REAR ADMIRAL FRANCIS ECHIE AGBITI VS. THE NIGERIAN NAVY (2011) 1 SCM 31 AT 531 TO 55 A – D; ADEYEMI V. OPEYORI (1976) 9-10 SC 31; FADIORA V. GBADEBO (1978) 3 SC 219; N.D.I.C. VS. C.B.N. & ANOR (2002) 7 NWLR (PART 766) 272 AT 295 C G and IN PETROJESSICA ENTERPRISES LTD V. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (PT.244) 675 AT 693.

Section 42 of the Constitution envisages a like for like treatment of cases, it does not compare apples and oranges;

see LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR OF NASSARAWA STATE (2012) 17 NWLR part 1328; the appellant’s complaint is clearly not that his co-accused in the attempted murder charge was reinstated into the Nigerian army while he was discriminated against.

Unfortunately, the issue of discrimination was not raised or pleaded before the trial Court; so even if the allegation of denial of fair hearing was addressed by the trial Court, the Court could not be expected to delve into whether the Appellant was discriminated against. I agree with learned counsel to the Respondent that it has no procedural basis; the contention that the lower Court violated the Appellant’s right to fair hearing because the issue of discharge was resolved without determining the right of the Appellant to freedom from discrimination is to say the least absurd.
The trial Court meticulously considered the nature of the appellant’s employment at page 237 of the record of appeal when it held:
“counsel for the claimant in arguing all the three issues formulated for determination together as stated at 4.8 that exhibits A1,A2,A3,A4,B,B1,C,D,C1 and C2, F and F1, G,H,I, K and DA showed that the claimant’s employment was statutory in nature…”

parties. Accordingly, the condition of service is the bedrock of the contract of employment. It therefore means that, where there are documents or series of documents which stipulate the terms and conditions of any employment contract, no Court should look outside those terms and conditions as stipulated in the document in deciding the rights and obligations of the parties to the agreement; See JOWAN & 77 ORS V. DELTA STEEL COMPANY LTD (2013) 1 A.C.E.L.R. P.18 AND MR. S. ANAJA V. UNITED BANK FOR AFRICA PLC (2014) A.C.E.L.R. P.78.

Furthermore, on Section 42 of the 1999 constitution as amended; it is always advisable to raise the issue of denial of fair hearing fairly; care should be taken to avoid clutching at straws where there is no basis for the claim. I say this because there is nothing to show that the other persons, whose convictions on charges of attempted murder were quashed by this Court, were reinstated by the respondents leaving the appellant out by way of discrimination; EGBUCHE V. EGBUCHE (2015) LPELR-25868- CA and APP V. OBIANO (2018) LPELR-44646-CA.
The allegation of denial of fair hearing was never established at trial and the

trial Court did not infringe on the Appellant’s right to fair hearing, in the least. It is not enough to merely allege denial of fair hearing; it has to be established in Court.

The trial Court commendably considered all issue before it before arriving at the decision it did. It is very important not to lose sight of the fact, and the position of the law that judgments are matters of style, what counts at the end of the day is substance. Even where there is some error by the Court, the Supreme Court had long established the principle of our jurisprudence in a plethora of cases including GARUBA V. K.I.C. LTD. (2005) 5 NWLR (PT.912) 460 AT 488, IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 14 NWLR (PT.584) 1, BANKOLE V. PELU (1991) 7 NWLR (PT.211) 523; UKAEGBU V. UGOJI (1991) 6 NWLR (PT. 196) 127 AND OKOLO V. MID-WEST NEWS PAPERS CORPORATION (1997) S.C. 33; that it is not every error in the Judgment of a trial Court that vitiates or voids the Judgment unless it is demonstrated that the error had occasioned a miscarriage of justice in the sense that if the error had not occurred, the judgment should have been different or otherwise.

There is no error or miscarriage in the entire judgment. It is for these reasons that I now resolve issues one, two and three in favour of the respondent, against the appellant.

Having resolved all the issues that call for determination in this appeal against the appellant, in favour of the respondents, the appeal fails for lack of merit and it is accordingly dismissed.

Judgment of the trial National Industrial Court of Nigeria, Abuja Division, presided by Hon Justice E.D.E Isele in NICN/ABJ/22/2013 delivered on the 28th of October, 2016 is hereby affirmed.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Mustapha JCA just delivered. I agree with his reasoning and the conclusions reached. I also find no merit in this appeal and I dismiss it.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother Mohammed Mustapha, JCA. I agree fully with the reasoning and the conclusion that this appeal lacks merit. I too, do dismiss the appeal.

Appearances:

Ugbde Idachaba Esq., with him, U. Oguine For Appellant(s)

Kalu Onuoha Esq., with him, Mandy Nworie For Respondent(s)