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National Industrial Court

Shehu Baba -VS- Nigerian Army & Ors

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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: FRIDAY 15TH NOVEMBER  2019                     

 

 SUIT NO.NICN/EN/25/2019

 

 

BETWEEN:

 

SHEHU BABA……………                                          CLAIMANT                               

                                                                                                           

AND

 

  1. NIGERIAN ARMY                                           DEFENDANTS
  2. CHIEF OF DEFENCE STAFF                                                               

                             

 

 

APPEARANCES:

  1. HELPER J. DIMOWO – FOR THE CLAIMANT.
  2. E.C. OGBU – FOR THE DEFENDANTS.

 

 

JUDGMENT

INTRODUCTION

Originating Summons commenced this suit on 3rd June 2019. The following questions were set down for the determination of the Court:

  1. Whether the Defendants are not bound to comply with the procedures laid down in the Nigerian Army Administrative Policies and Procedures (as revised in 2015), and section 173(2) of the Armed Forces Act Cap A20 LFN 2004?
  2. Whether by the combined interpretation of Section 173(2) of the Armed Forces Act, CAP A20 LFN 2004, and the Nigerian Army Administrative Policies and Procedures (as revised in 2015) the purported dismissal of the Claimant from the Nigerian Army by the Defendants on 19th day of February, 2010 is not null, void and liable to be set aside by this Honourable Court?
  3. Whether or not the purported summary trial, conviction and dismissal of the Claimant from the Nigerian Army by the Commanding Officer of the Claimant on 19th day of February, 2010, without Post Board on inquiry (BOI) after his return to his Unit and without affording him the opportunity of being heard and following the due process in trying him does not amount to breach of Section 36 of the 1999 Constitution (as amended)?
  4. Whether or not the purported summary trial, conviction and dismissal of the Claimant from the Nigerian Army by the Commanding Officer of the Claimant on the 19th day of February, 2010, without post BOI (Board of inquiry) and without affording him the opportunity of being heard on the charges and allegations leveled against him does amount to breach of the Claimant’s right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

The claimant also formulated the following reliefs against the defendants:

  1. A DECLARATION that the purported summary trial and premature Dismissal of the Claimant by the Defendants is in breach of the Claimant’s right to fair hearing and foists grave injustice to the Claimant.
  2. A DECLARATION that the purported summary trial and premature dismissal of the Claimant by the Defendants is null, void and of no effect whatsoever.
  3. A DECLARATION that the Process and Procedures adopted by the Defendant’s Commanding Officer in trying the Claimant summarily is unknown to law and is contravention of the copious provisions of the Nigerian Army Administrative Policies and Procedures (as reviewed in 2015); Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
  4. A DECLARATION that the Claimant is still in the service of the Defendants and entitled to all his unpaid salaries and allowances calculated from the 19th day of February, 2010 till date.
  5. A DECLARATION that once a Soldier is SOS (striking off strength) from the Unit a Post Board of inquiry (BOI) after his voluntary return or upon arrest must be constituted to REJAB (reinstate) him before his trial.
  6. An ORDER [sic] compelling the Defendant to pay the Claimant all his salaries and allowances calculated from the 19th of February, 2010 till judgment is delivered and thereafter.

The originating summons was supported by affidavit and written address. The defendants filed a memo of appearance and Notice of Preliminary Objection [NPO] against the above on 26th June 2019, on the sole ground that, the “…suit is contentious and cannot be commenced by way of originating summons.” The NPO was supported with a written address. The defendants equally filed counter-affidavit supported with a written address against the substantive suit on this same day. The claimant replied on points of law [RPL] to the defendants’ NPO on 2nd October 2019. The claimant also filed Further and Better Affidavit [FABA] against the defendants’ counter-affidavit on 2nd October 2019. It was accompanied with another Reply on Points of Law [RPL].

The matter came up first before me on 29th October 2019 for mention and was adjourned to 4th November 2019 for hearing. It came up for hearing as adjourned. The Court directed that both the originating summons and the NPO would be heard together, with the claimant’s counsel moving first. As a result, the learned counsel to the claimant: HELPER J. DIMOWO relied on the affidavit in support of the originating summons and adopted the written address in support. The learned counsel to the claimant thereafter adopted the RPL filed against the NPO; and thereafter, also relied on the FABA and adopted the second RPL filed in support. The learned counsel, by way of adumbration, submitted that, only substantial dispute of facts on the substantive issues would make a court decline to hear a matter on originating summons.

Thereafter, the learned counsel to the defendants: E.C. OGBU took his turn, as earlier ordered by the Court. The learned counsel moved the NPO first and adopted the written address in support. Thereafter, the learned counsel, in adumbration submitted that, the facts of this case are contentious. Thereafter, the learned counsel moved to the originating summons on merit. The learned counsel relied on the counter-affidavit and adopted the accompanied written address. The learned counsel, by way of adumbration, prayed the Court to dismiss the suit or order pleadings. At the end, the matter was adjourned to 15th November 2019 for judgment. Having summarised all that transpired from the filing of this case till the adoption of the written addresses for and against both the NPO and the substantive suit, the next thing is to proceed to summarise these addresses before I give my decisions on both the NPO and the substantive suit. I start with the addresses on the NPO, being a threshold.

SUMMARY OF ADDRESSES

  1. Address in Support of the NPO

CHIMAROKE P. EDE franked the address in support of the NPO. In arguing the NPO, the learned counsel submitted two issues for its determination, to wit:

  1. Whether considering the reliefs sought the claimant can commence this present suit vide originating summons. [sic]
  2. “Whether this suit as presently constituted is not an abuse of court process [sic].”

In arguing issue a, the learned counsel submitted that, in determining whether a suit is properly commenced via originating summons, a court is obliged to look at the questions formulated for determination alongside the reliefs claimed and the affidavit of the parties. The learned counsel further submitted that, originating summons is only suitable for construction of statutes or documents; and that, the nature of the reliefs claimed herein, showed the contentious nature of the facts, making it unsuitable for originating summons. The learned counsel cited FGP Ltd v. Duru (2017) 14 NWLR (Pt. 1586) C.A. 433 at 520 and Ogah v. Ikpeazu (17 NLWLR (Pt. 1594) SC 299 and moved to the second issue. On the second issue, which is on abuse of process, the learned counsel cited FGP Ltd v. Duru on what abuse of process is; and that, the consequence of upholding abuse of process, is striking out of the suit; and urged the Court to strike it out for being incompetent. Thus, ended the written address in respect of the NPO. I shall move to the written address of the claimant against the NPO.

  1. Address of the Claimant Against the NPO

HELPER J. DIMOWO franked this address. The learned counsel adopted the two issues formulated by the learned counsel to the defendants. The learned counsel submitted on issue a that, there is no substantial dispute of facts disclosed between the affidavits in support of the originating summons and the counter-affidavit of the defendants. The learned counsel submitted that, the essence of this suit is to construe the provisions of section 173(2) of the AFA, pages 24-25 of the Nigerian Army Administrative Policies and Procedures [NAAPP] together with section 36 of the 1999 Constitution. The learned counsel cited Pam v. Mohammed (2008) 16 NWLR (Pt. 112) 1 on how to determine substantial disputes of facts; and submitted that, where the life issues in a case are not affected, substantial dispute of facts does not exist. The learned counsel further submitted that, this suit seeks the construction of the provisions of the statutes mentioned above and to determine whether proper procedure was followed in dismissing the claimant.

The learned counsel submitted that, the reliefs sought in the suit are only consequential to a determination of the questions of law involved and cited Mua’zu v. Bawa (2018) LPELR-45373 CA to the effect that, originating summons could be used in actions asking for declaratory reliefs. The learned counsel submitted that, once the Court comes to the conclusion that proper procedure was not followed; it is bound to declare the dismissal null and void. The learned counsel cited Ejembi v. AG Benue State (2004) ALL FWLR (Pt. 333) B-G. The learned counsel submitted that, the failure to follow the proper procedure infringed the right of fair hearing of the claimant; and cited Ardo v. INEC & Ors (2017) LPELR-4191 and others. The learned counsel submitted that, the claimant adopted the right mode to commence this action.

The learned counsel submitted that, the defendants, in paragraph 7 of their counter-affidavit deposed that the claimant was dismissed in line with the laid down rules, which shows that, the defendants agreed the claimant was dismissed; and hence, it is only left for the Court to determine the properness of the procedure. The learned counsel submitted that, the defendants failed to show which procedure was adopted in dismissing the claimant. The learned counsel urged the Court to hold that, the claimant properly commenced the action and; moved to the second issue. On issue b, which is on abuse of process, the learned counsel submitted that, even if the suit was wrongly commenced via originating summons, the law only says, it should be converted to trial on pleadings and not striking out. The learned counsel cited Order 3, Rule 17(2) of the NICN Rules to support his position. Thus, ended the addresses on the NPO. I now go to the written addresses in respect of the substantive suit.

 

 

ADDRESES IN RESPECT OF THE SUBSTANTIVE SUIT

  1. A.Written Address of the Claimant

HELPER J. DIMOWO franked this address.  The learned counsel adopted the four questions formulated for the Court as the issues. These were earlier reproduced supra. I take them seriatim.

ISSUE 1: Whether the Defendants are not bound to comply with the procedures laid down in the Nigerian Army Administrative Policies and Procedures (as revised in 2015), and section 173(2) of the Armed Forces Act Cap A20 LFN 2004?

The learned counsel submitted that, the procedure to follow in the discipline of the claimant, for being allegedly absent without leave, is laid down in section 173(2) of the AFA and paragraph 5, page 24 of the NAAPP, and that, the defendants failed to follow it. The learned counsel argued that, the failure to follow the procedure, not only led to injustice against the claimant but, equally infringed his fundamental right to fair hearing. The learned counsel urged the Court to hold that, the defendants are bound to follow the rules; and cited Ejembi v. AG Benue State [supra] on how refusal to follow laid down rules leads to injustice. The learned counsel thereafter moved to issue 2.

ISSUE 2: Whether by the combined interpretation of Section 173(2) of the Armed Forces Act, CAP A20 LFN 2004, and the Nigerian Army Administrative Policies and Procedures (as revised in 2015) the purported dismissal of the Claimant from the Nigerian Army by the Defendants on 19th day of February, 2010 is not null, void and liable to be set aside by this Honourable Court?

The learned counsel submitted that, answering issue 1 in the affirmative leads to a declaration of the action and inaction of the defendants as null and void. The learned counsel submitted that, the use of the word ‘must’ in paragraph 5, page 5 of the NAAPP indicates compulsion on the part of the defendants to comply with the provisions in issue. The learned counsel further submitted that, where it is established that failure to follow a procedure to the letter led to miscarriage of justice, such must be declared null and void. The learned counsel submitted that, the illegality in the failure to follow the proper procedure in the instant case led to miscarriage of justice and breach of fair hearing against the claimant; and as such, a nullity. The learned counsel cited Ejembi v. AG Benue State [supra] and urged the Court to grant all the reliefs claimed; and moved to issue 3.

ISSUE 3: Whether or not the purported summary trial, conviction and dismissal of the Claimant from the Nigerian Army by the Commanding Officer of the Claimant on 19th day of February, 2010, without Post Board of inquiry (BOI) after his return to his Unit and without affording him the opportunity of being heard and following the due process in trying him does not amount to breach of Section 36 of the 1999 Constitution (as amended)?

The learned counsel submitted that, the right to fair hearing is sacrosanct and that, the claimant must be afforded hearing at every stage leading to his discipline. The learned counsel submitted that, the determination of adherence to fair hearing is what the impression of a reasonable man is, about the trial. The learned counsel cited Ardo v. INEC (2017) LPELR—4191 and some other cases. The learned counsel argued that, the main purpose of the Board of Inquiry, as enshrined in section 173(2) of the AFA and reinforced in paragraph 5, page 5 of the NAAPP, is to enable the claimant to be heard before he could be disciplined and that; he was not heard before he was disciplined. The learned counsel submitted that, a breach of this provision, by failing to constitute Board of Inquiry after the return of the claimant to the unit, as in the instant case, is a breach of section 36 of the 1999 Constitution. The learned counsel submitted that, the Court must hold that, failure to follow the laid down procedure nullified the trial of the claimant. The learned counsel thereafter moved to issue 4.

ISSUE 4: Whether or not the purported summary trial, conviction and dismissal of the Claimant from the Nigerian Army by the Commanding Officer of the Claimant on the 19th day of February, 2010, without post BOI (Board of inquiry) and without affording him the opportunity of being heard on the charges and allegations leveled against him does amount to breach of the Claimant’s right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

The learned counsel submitted that, a hearing could not be said to be fair, where a party is refused hearing and; that, any decision arising from such trial must be nullified. The learned counsel cited FBN PLC v. TSA/ND Ltd (2010) 15 NWLR (Pt. 1216) 247 SC 303, A-H. The learned counsel submitted that, a hearing could only be said to be fair, where all the parties were given opportunity of being heard. The learned counsel cited Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and some other authorities. The learned counsel submitted that, the failure of the defendants to follow the procedures laid down in the AFA and NAAPP breached section 36(1) of the 1999 Constitution. The learned counsel submitted that, failure to set up a Board of Inquiry is so germane because, it is at the Board alone that, the claimant would have opportunity of being heard before trial and punishment, as provided by paragraph 5, page 5 of the NAAPP. The learned counsel submitted that, failure in this respect nullifies the trial, and urged the Court to grant all the reliefs claimed. That ends the address in support of the originating summons. I move to the address of the defendants against the originating summons.

  1. Address Against the Originating Summons

CHIMAROKE P. EDE franked this. The learned counsel adopted the four issues formulated by the learned counsel to the claimant; and argued issues 1 and 2 together. The learned counsel adopted the arguments of the claimant in paragraphs 5.1-5.4 of his written address and, submitted however that, the defendants followed the relevant laws in dismissing the claimant. There ended the learned counsel’s address on issues 1 and 2; and the learned counsel moved to issues 3 and 4, which he also argued together. The learned counsel cited Regst. Trustees of PCN v. Etim (2017) 13 NWLR (Pt. 1581) 1 SC p. 42 to the effect that, fair hearing means, being given opportunity to be heard; and that, the claimant was given ample opportunity to be heard before he was dismissed.

The learned counsel argued that, the claimant failed to give good account of his absence for 41 days. The learned counsel submitted that, breach of fair hearing does not occur, where a party was given the opportunity of being heard and he decided to remain silent and cited Regst. Trustees of PCN v. Etim [supra]. The learned counsel cited Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433 SC to argue that, right to fair hearing could be waived. The learned counsel further submitted that, in the light of the above, the claimant was given ample opportunity, which he decided not to utilize and, is therefore estopped from complaining. The learned counsel urged the Court to hold that; the defendants followed all relevant laws in the dismissal of the claimant. The learned counsel finally urged the Court to dismiss the suit with substantial cost. That ends the written address of the defendants against the originating summons.

I ought to go to the Reply on Points of Law [RPL] filed by the claimant to the written address of the defendants, but I will not, because, I couldn’t find any RPL. What the learned counsel to the claimant did, was to formulate two issues afresh and start the arguments on the originating summons all over again. The learned counsel failed to reply to the issue of waiver raised as the only new issue in the address of the defendants, which ought to have been the real focus of the RPL. I would therefore advise the learned counsel to the claimant to search out good authorities on the purpose of RPL and read. I therefore decline to summarise this repetitious address wrongly called RPL – see APPH & Ors v. Oturie (2019) LPELR-46301 (CA) 10-11. The RPL is accordingly discountenanced – see Suleiman v. FRN (2017) LPELR-43353 (CA) 22-23, E-E.

Largely the same thing is applicable to the FABA, which essentially is a repetition and further elaboration of the facts contained in the original affidavit in support. I could not see the difference it makes to the case of the claimant. The FABA itself admitted that, the affidavit in support of the originating summons was not properly traversed in the counter-affidavit of the defendants – see paras. 8(B), (I), (J) and 9. Then, why the FABA! I however took note of the fact that, in paragraph 6 of the FABA, the claimant added that, the pass granted him was recorded in the book kept by the defendants. I mentioned this fact because; I would come back to it anon. I will now go to my decision, there being no further address to summarise.

However, I wish to preface my decision with the usual mantra that, I have most painstakingly read all the processes connected with this originating summons and digested the contents. I have taken note of the fact that affidavits take the place of pleadings and evidence in actions commenced by way of originating summons. I have equally taken cognisance of the rules to resolve conflicts in affidavits. I have equally taken note of all the authorities cited and consulted the focal ones and also did my personal research, before coming to my decision. I am aware too, that, I did not summarise the evidence of the parties, as contained in their affidavits. Nonetheless, I carefully read and digested their contents without exception. That I did would be reflected in my decisions when references are made to the relevant portions in the course of this judgment as the needs arise.

Equally important is the fact that I have taken note of the NPO filed in this matter and taken note of the fact that, it must be decided first, before deciding the merit of the case, notwithstanding that the Court ordered that, it be moved with the originating summons – see Garba v. Mohammed & Ors (2016) LPELR-40612 (SC) 57, B. I have equally and carefully read all the processes connected with it and digested them. I have also read all the important authorities cited for and against it; and did my personal research too, before arriving in my decision on it. Because of the NPO, which has a distinct life of its own; and radical at that, my decision would be divided into two parts. Part A shall deal with the NPO while Part B shall deal with the originating summons on its merit, whatever happens to the NPO because of the admonition of the higher courts that, where jurisdictional point is heard with substantive matter, the trial court should render its decisions on both for the consideration of the appellate courts, in case, its decision on the jurisdiction point is upturned, in order to enrich the horizon of the appellate courts and in order also to obviate retrial in appropriate cases – see African Petroleum Plc v. Adeniyi & Ors (2011) LPELR-3642 (CA) 21-26, D-E. That is that. I go to my decisions.

COURT’S DECISION

Part A: Decision on the NPO

I start my decision with the decision of the Supreme Court in Ezeigwe v. Nwawulu & Ors (2010) LPELR-1201 (SC) 68, B-D, where the law on appropriateness of originating summons in commencing an action was carefully stated and explained:

“There can be disputed facts which originating summons procedure could resolve, but, where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In other words originating summons procedure is appropriate where there is no substantial dispute between the parties or likelihood of such dispute.”

Now, the question to examine herein is, whether there is substantial dispute of facts in this case. The learned counsel to the defendants/applicant argued in the NPO that there is, while the learned counsel to the claimant/respondent argued contrariwise. To determine this, one needs turn to the affidavits in support of the originating summons and the counter-affidavit against it. I will not bother to make reference to the Further and Better Affidavit filed for reasons earlier explained.

I have read both set of affidavits, I cannot find any conflict in the evidence contained in the affidavit and counter-affidavit relating to the issues to be decided between the parties. This is so because, I could not see that the defendants did proper controversion of the depositions in the affidavit in support of the originating summons in their counter-affidavit. Paragraphs 3-6 of the affidavit in support of the originating summons, essentially assert that, the defendants gave the claimant study leave to study in Military School, Ilorin and that, because, the claimant was not offered admission therein, the claimant proceeded to the Kwara State College of Education, Ilorin instead, for the course and was arrested in his 100 Level by the defendants. In controverting these paragraphs, all that the defendants did, in paragraph 5 of their counter-affidavit, is to say, they are not in a position to deny or admit the depositions contained therein. I am piqued that these pieces of information that are naturally and logically supposed to be in the custody of the defendants, they claimed that they are not in a position to deny or admit same. Are the defendants saying they are not in a position to know, if truly, they granted study leave to the claimant? Are they saying also that, they are not aware that they arrested the claimant at the Kwara State College of Education, Ilorin, or that; they even arrested him at all? I think these counter-depositions leave much to be desired. In short, the defendants’ and their counsel handling of the case needs much to be desired.

Further to the above, paragraphs 7-12 of the affidavit in support of the originating summons stated the claimant was detained for 41 days, later released and sent on election duty at Anambra State; and when the claimant returned, was brought to his Commanding Officer on a charge of absence without leave; wherein the Commanding Officer summarily tried him without affording him the opportunity of being heard and dismissed him without, equally and priorly, setting up Board of Inquiry to investigate the allegations against the claimant thus, denying him the opportunity of being heard before the trial and dismissal. It was also stated therein that, the claimant wrote letter of protest on 12th March 2010 after the dismissal on 19th February 2010. In controverting these allegations, the defendant merely said, in their counter-affidavit that, the depositions are false and that, the claimant was given fair hearing and his dismissal was in accordance with relevant laws.

How he was giving fair hearing was not stated. What specific fact(s) brought the dismissal within the confines of the alleged relevant laws, were not stated against the specific allegations that the claimant was not heard at the trial and that, Board of Inquiry was not set up to investigate the allegations against him, before the trial. Neither was the specific allegation of detention for 41 days denied, in the slightest way. The specific allegation was made that the claimant was not heard at the trial; and that, Board of Inquiry was equally not set up, to investigate the allegations against the claimant, the defendants did not even traverse this at all, not to talk of the insufficiency of the traverses. It was held in APPH & Ors v. Iturie (supra) 19 that:

“Where in a counter affidavit, a respondent makes some feeble and shallow averments in denial of specific facts in an affidavit such averments are mere general denials which are ineffective as a challenge to serious averments made against him.”

Specific facts in affidavit are to be “specifically, and effectively denied or controverted” to amount to denial – see Iwununne v. Egbuchulem & Ors (2016) LPELR-40515 (CA) 31, E-F. Thus, since the defendants failed to specifically and sufficiently controvert the specific allegations against them, the implication is that, I am left with the depositions of the claimant alone. The Court of Appeal has held in Intercontinental Bank Plc v. Sunshine Oil & Chemical Dev. Co. (2014) LPELR-22928 (CA) 9, C-D:

“A mere declaration that facts deposed to in an affidavit are not true is not sufficient unless the deponent is the same person who made the earlier deposition.”

The deponent to the counter-affidavit is definitely not the deponent to the affidavit in support to be accused of internal inconsistency in his depositions. In Oloyede v. Oloyede (2014) LPELR-24384 (CA) 29, A-D, the Court of Appeal held that, to necessitate converting originating summons to pleadings:

“The conflict to necessitate calling of oral evidence must be material conflict of material facts that cannot also be resolved from the entire paragraphs of the entire affidavits and counter affidavits in the matter or, if any, other evidence available through them such as documents attached thereof.”

It is clear that the alleged conflict in the affidavits of the parties does not exist in view of the resolution of it as explained above. I also state that, even if there is any conflict between the two sets of affidavit, such does not touch the main issue for determination in this case. The main issues are whether or not the claimant was heard before dismissal; and whether or not, a Board of Inquiry was set up before the trial and dismissal. Since the defendant failed to join issue on these, the inquiry to carry out by the Court is to construe the provisions of the instruments in issue and find out what the true position of law is on them. It suffices now to say the counter-affidavit is useless and accordingly discountenanced. Therefore, there is no dispute of facts to necessitate ordering of pleadings. Therefore, the NPO lacks merit; and is accordingly dismissed in its entirety. The suit was properly commenced via originating summons.

But I make haste to say, it is one thing to have properly commenced an action via originating summons, in view of the fact that there are no irreconcilable conflicts in the affidavit and counter-affidavit for and against. It is yet another thing to satisfy the requirements of actions commenced via originating summons with regard to the nature of evidence to adduce with relations to the reliefs claimed. I now move to Part B, the substantive suit.

Part B: Decision on the Merit of the Substantive Case

            Before I go further in this section, I would need to address a preliminary issue, which is germane. This is the issue of the NAAPP. I observed that, throughout the whole gamut of the two affidavits in support of the originating summons: that is the affidavit in support and the FABA, the claimant did not exhibit the NAAPP to any of these affidavits and neither mentioned in the affidavits, that he did. I also observed that the defendants too did not exhibit same. But surprisingly, I found at the back of the claimant’s RPL against the NPO, attached, what is titled “Nigerian Army Administrative Policy and Procedure No 5, Absence Without Leave Procedure” – see pp. 76-77 of file.

First, the procedure by which this document was smuggled in is strange to me. This I say because, I have closely examined the bundle making up the claimant’s RPL against the NPO, the very document in issue and the photocopy of payment receipt for NBA Stamp and Seal Fees, which is the last of the bundle; and both it and the claimant written address, which this very document in issue, interposed; and found that, the original staple pin appeared to have been removed and replaced with another because, the marks of the previous stapled spots are very obvious on the front of the bundle and the back. This three-piece bundle is contained in p. 67-78 of file. This clearly suggests that something must have necessitated the removal of the original pin and the replacement with another. The only logical explanation is that, this strange document was an afterthought, added to the bundle. This irresistible conclusion becomes unassailable when it is realised that, the very last of the three-piece bundle, that is, the photocopy of the payment of NBA Stamp and Seal Receipt showed the signs of removal and replacement of staple pin.

This means, it is the strange document in issue that was actually interposed. Though, a close perusal of the interposed strange document, by carefully lifting up the sheet of papers at the very point of the new staple pin showed that, it too has marks of another pin removed, meaning that, a pin was also removed from it. I put it to, these marks are due the to removal of the pin by which the strange document, which is two-page document, was originally secured together, which had to be removed for accommodation in the subsequently and newly improvised three-piece document. The photocopy of the NBA Stamp and Seal Receipt was not supposed to have marks pin removal, since it is a single-page document. The only explanation for these double marks signifying pin removal on it could only mean that, the bundle was originally of two-piece subsequently detached after they were married together, to now accommodate the strange NAAPP. But what I cannot determine now, is the point at which this removal and interposition took place: whether after the claimant’s RPL against the NPO, to which it is attached, was filed or before it was filed. If before it was filed, then, whoever filed the process on behalf of the claimant is not blameworthy, but if after it was filed, that person is very much blameworthy.

But the fact remains; it is in the court’s file. The Court cannot therefore pretend that, it did not see it. Now, the question that arises is: what is the legal effect of its presence in the court’s file. I think I am home and dry, by placing reliance on the Court of Appeal in Dorkubo & Ors v. Udoh & Anor (2016) LPELR-41167 (CA) 5-6, D-C:

“It is trite that a document, no matter how relevant it may be, which was not pleaded and tendered as an exhibit before a trial Court, cannot be relied upon by the trial Court, except its contents have been rendered admissible in law; Oparaji v. Ohanu (1999) 6 S.C. (Pt. 1) 41. The decision of the trial Court must be based upon documents that have been pleaded and duly tendered as an exhibit…The expected contents of a brief of argument of a party is spelt out…The brief of argument is not expected to contain an annexure of a document, no matter how relevant it may be…A document, annexed to a brief of argument is therefore strange document and not part of the requirements of a brief…This Court cannot therefore countenance documents smuggled in, outside the purview of the Rules. Accordingly, the document annexed as Annexure 1 to the Appellants’ Brief as well as the documents included in the Record of Appeal at pages 7—71, which were not placed before the trial Court, shall not be countenanced and are hereby struck out.”

Now, Order 45, Rules 1-3 of the NICN Rules govern what shall be contained in a written address filed in this Court. Rule 2 thereof is particularly relevant. It lists out the contents of a written address in this Court; and in its sub-rule 2(g), it states that, a written address in this Court must NOT contain extraneous matters. In the enumeration of the lawful contents, it is not included that, a written address in this Court could contain or have attached to it, exhibits or annexures. Clearly the NAAPP attached to the written address in issue, is in clear violation of Order 45, Rule 2 (g), which forbids extraneous matters being included in a brief or attached to it. The strange document attached to it, apart from all the anomalies I have pointed out above, is clearly an extraneous matter or material, which has no place in a written address, which RPL is. And to make matters worse, it is not even mentioned throughout the whole gamut of the RPL to which it was attached that, anything of such was attached. It was not marked as an exhibit or annexure too. It was just dumped. Worse for it, it was not even attached to the written address on the substantive suit, where it could have some sort of nexus, but to the RPL against the NPO, where clearly it has no bearing. And the RPL has no affidavit in support. In fact, throughout the whole gamut of all the two different affidavits filed in this matter by the claimant, mention of this strange document, being exhibited with either, was not made. Likewise, no mention was not made of having exhibited it or annexed it with any affidavit or process in the three written addresses filed by the learned counsel to the claimant in this matter or during oral adumbration at the hearing of the matter on 4th November 2019.

Considering all I have said above on this strange document, it is clear that, it is totally uncalled for and cannot stand. It is wrongly smuggled into the RPL of the claimant against the NPO or into the Court’s file, after the RPL had been filed. Order 45, Rule 3(2) says failure to comply with rules 2 and 3(1) may even render the whole of the written address incompetent. I will not exercise my discretion to pronounce the whole of the written address incompetent. I will be satisfied with the prescription of the Court of Appeal in Dorkubo & Ors v. Udoh & Anor [supra] in declaring the NAAPP [the strange document] attached to the RPL of the claimant against the NPO incompetent and liable to be struck. Before I do that, let me clear an ancillary issue. This is the issue of the photocopy of the Receipt of Payment for NBA Stamp and Seal, which is also attached. Since the Rules of this Court did not mention such in the list of documents to be attached, could it, too, be regarded as extraneous and liable to suffer the fate of the strange NAAPP?

No. It is not an extraneous matter, just like attachments of the receipts for payment of filing fees to processes filed are not extraneous to such processes. This is because, the NBA Rules of Ethic for Legal Practitioners insist that the courts must see evidence of the payment for such before such processes franked by lawyers in Nigeria could be competent for cognisance. So, the Receipt for Payment of NBA Stamp and Seal is properly attached to the RPL in issue in the absence of the Seal. There is no law or rule that gives the claimant or his counsel the vires to attach this strange document [NAAPP] to the written address. The place, which the law provides for it, is the affidavit. Having failed to exhibit it with the two affidavits filed by the claimant in this matter, it could not be smuggled in, and having being so smuggled in illegally, it is incompetent. The Court cannot take cognisance of it; and since the Court cannot take cognisance of it, it is accordingly struck out. That ends the issue of the strange document, let me now go to the real subject before me: determination of the substantive suit.

I recount that, I have held that the affidavit in support of the originating summons remains unscathed, for the depositions therein contained were improperly counteracted; but, it needs be pointed out that, the issue of the cogency of these depositions and their sufficiency, even though, unchallenged, is another thing, governed by another law entirely – Ahmodu & Anor v. Yunusa (2010) LPELR-8601 (CA) 11-13, F-C. The cogency and sufficiency of the affidavit in support of the originating summons are the two preliminary questions that must be answered before I can proceed further. There I go.

I begin with the relevant rules of this Court. Order 3, Rule 17(1)(b) of the NICN Rules 2017. It provides thus:

“17. – (1) An Originating summons shall be accompanied by:

(a) …

(b) copies of the instrument indicating part(s) sought to be construed (other than an enactment) and other related documents.”

What I found in this case is that, the claimant deposed to the facts that, he, as private soldier; was shortlisted for three years NCE Programme at the Military School, Ilorin, and as such, was granted three-year Study Leave. Yet, the claimant failed to exhibit the letter of appointment/employment as a soldier, the purported document shortlisting him and the instrument granting him the alleged study leave – see paras. 3-5 of the affidavit in support. And he did not state that he was orally appointed or that, the leave granted him, was granted orally. To shortlist, is to printout a documentary list. So, where is the documentary list shortlisting the claimant? In paragraph 6 of the FABA, the claimant deposed that, the defendants have the book where ‘all the’ “pass” [sic] (leave) granted to soldiers were recorded. Is it the book in which these passes were recorded for the record of the defendants that the claimant would use in proving that he was actually granted a pass? No. It is the pass itself, which the clearly admitted he was granted, that he must exhibit with his affidavits and not where it was recorded. He cannot shift his responsibility to the defendants. In its absence, he must explain to the satisfaction of the Court what accounted for its absence to induce belief. In addition, I equally found that, the claimant based his case squarely on the combined construction of the provisions of the NAAPP, the rules allegedly made by the Chief of Army Staff, which provisions were allegedly breached, along with section 173(2) of the AFA and section 36 of the 1999 Constitution, yet, the claimant did not deem it fit to exhibit the said NAAPP.

It appears to me, from the case presented by the claimant, and argued by his learned counsel that, to arrive at justice, the NAAPP, the AFA and section 36 of the 1999 Constitution must be given conjunctive construction. And I have not been told that, the NAAPP is a subsidiary legislation, to enjoy the status of an enactment, which might have obviated the need to exhibit it. So, it is compulsory to exhibit the NAAPP; and failure in this respect is deadly. These lapses are obviously in breach of the provisions of Order 3, Rule 17(1)(b) of the NICN Rules, as quoted above. This being an action commenced via originating summons, the implication is that, the claimant has not placed sufficient materials before the Court to decide this case. In Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B, the Court of Appeal admirably explained the law relating to situations like this, and in relation specifically to originating summons:

“It is therefore obvious that whenever there is/are gaps in the case set up by a plaintiff in the supporting affidavit of an originating summons, the position of the law that a plaintiff is entitled to judgment upon the unchallenged and uncontroverted evidence, cannot be invoked. This is because the position of law is as enunciated in the case of OKOEBO V. POLICE COUNCIL (2003) LPELR – 2458 (SC) is to the effect that wherever any evidence, whether affidavit or oral stands uncontradicted, unless the evidence is patently incredible, the Court ought to regard the matter to be proved by that evidence as admitted by the adverse party. This would appear to be the situation in the instant case in as much as the Appellant in the supporting affidavit of the originating summons failed to depose to cogent facts to establish that he emerged winner at the election of the APC held on 16/6/2018 for the Chairmanship election…that his name was forwarded to the 1st Respondent by the 2nd Respondent and his name was substituted thereafter. It therefore becomes obvious that the lower court was correct in its conclusion that ‘it is important I state that even in the absence of counter affidavit of the 1st and 3rd Defendants, the plaintiff has not shown that he won the primaries and that his name was submitted by the 2nd Defendant and was later substituted. I am of the view that the plaintiff has not put enough materials to enable the Court grant him the reliefs sought’ and dismissing the Appellant’s case. This too, is eminently correct and cannot now be provided by the slant given to the facts deposed to in the affidavit in support of the originating summons.” [Underline supplied for emphasis]

Lethal gaps were created in the instant case by the omissions identified above, such that, no reasonable court of law could entertain the reliefs being claimed. The omissions enumerated in this case, being of fundamental nature, created a lethal hemorrhage that must bleed the case to death; and this deadly contagious disease cannot be cured by the address of counsel. These lapses are simply failure to supply fundamental materials for the determination of the case. It is failure to meet fundamental conditions precedent. While it may be that the letter of appointment is not in issue and need not be exhibited, though, desirable to exhibit it, the same thing cannot be said of the alleged document shortlisting the claimant for the study leave, the letter granting the claimant the alleged study leave, and the pass that gave him permission to exit the barracks, when it is clear that, the study leave and the pass are the very fulcrum of the claimant’s case. It is absolutely essential that, the instrument granting the leave and the pass be exhibited or their absence satisfactorily explained: ditto, the NAAPP. It must be noted that, virtually all the reliefs claimed are declaratory reliefs. The power of a court to grant declaratory reliefs is equitable. He who comes to equity must be above board, by coming clean. Thus, the Court of Appeal says of equitable reliefs in Acholonu & Ors v. Ohiri (2016) LPELR-40445 (CA) 24, B-D:

“A prayer for equitable relief is an appeal to the exercise of discretion by the Court for the Applicant, tapping on the moral conscience of the law or mercy chambers of Court, honesty/integrity and diligence in the presentation of facts and handling of the case, to qualify for equitable remedy.”

I cannot in all honesty fathom the rationale for failure to exhibit the shortlisting document, the letter granting the study leave to the claimant and the pass by which the claimant alleged he lawfully exited the Military Barrack, when the claimant dutifully exhibited the admission letter into the Kwara State College of Education, where he said he went when he was not offered admission in the school to which he was allegedly granted leave. I am also at a loss to reckon with the bizarre explanation that, the claimant got to the school to which he was granted study leave and discovered that he was not offered admission. If I may ask, is admission not to be first secured before such leave is granted? Even if this were not so, is the claimant not expected to exhibit evidence that he even applied to the school he was allegedly granted leave to attend? No such evidence was attached or even alluded to. Then, what was the basis of the shortlisting and what was the basis of expectation of admission into the school to which he was allegedly shortlisted? All these questions might not arise if he had exhibited the document shortlisting him or the study leave approval, or even the pass for three years. Without these documents exhibited, the alleged study leave granted is suspicious and not capable of inducing belief in any court of law or reasonable tribunal. This Court, in a similar situation, as in the instant case, in an unreported decision, in Suit No NICN/OW/65/2017 – Comrade Ngozi & 1 Or v. Comrade Uchehara & 7 Ors [Delivered 24th May 2018 at Owerri Division] p. 12-14, para. 2-1 held; and I quote in extenso:

 “A court does composite interpretation. It is for this additional reason that the whole of such instrument or contract must be submitted before the Court can assume jurisdiction to interpret the provisions in issue – see Emuwa v. Consolidated Discounts Ltd. (2000) LPELR-6871 (CA) 7-8, paras. G-B, where the Court of Appeal held:

‘In interpreting a document, due regard must be given to the entire document so as to find the correct meaning of the words in relation to the agreement.’

In consonance with the foregoing, Order 3, Rule 17 – (1)(b) of the NICN Rules 2017 mandates a party bringing an action by way of originating summons to accompany the originating summons with copies of the instruments and other related documents (except statutes) sought to be construed with the relevant parts clearly indicated. So, the procedure adopted by the claimants in not exhibiting the NULGE Constitution 2016, an instrument sought to be construed, is clearly irregular and goes to the root of their case. This is because, a court of law cannot pronounce on the provisions of a document, instrument or contract not placed before it: to do so would amount to engaging in speculation, which a court of law is forbidden from doing – see Omenka Mathew Ode & Ors. v. Attorney General of Benue State & Ors. (2011) LPELR-4774 (CA) 54-55, paras. A-B. The Court of Appeal in Aremu v. Chukwu (2011) LPELR-3862 (CA) 43, paras. D-E held, and I quote: ‘It is trite that for a trial court to allow itself to be guided by a documentary evidence, that document in issue must be properly placed before it.’ See also Omale v. University of Agriculture, Makurdi & Ors. (2011) LPELR-4366(CA) 28, paras. C-D, where the Court of Appeal held that: ‘A party who relies on a document in proof of his claim must tender the document as extrinsic evidence of its contents is not admissible in evidence’. [sic] What is more, in a case where the rule provides that judgment of the court must be exhibited to obtain order nisi, and in its stead, an enrolled order of the judgment was exhibited, the Court of Appeal held in Shittu v. Kwara State Polytechnic, Ilorin & Ors (2014) LPELR – 23820 (CA) 26, paras. D-F that:

‘In the final analysis and for what I had said above the enrolled orders – Exhibits A and B attached to the motion ex-parte did not satisfy the requirement that the judgment sought to be enforced must be placed before the Court and as such the material necessary to assist the trial Court in arriving at its decision in the exercise of its discretion to make the Order nisi was not placed before it. This accordingly robbed the Court of the jurisdiction to make the Order nisi in the first place.’

The above is a good example of a case where the Court held that a document that could be judicially noticed [judgment of court] must still be produced before the court could act on it. The instant case is one in which the material in issue was not placed before the Court at all by any of the parties, and the material in issue is likewise not one of which the Court is to obliged [sic] to take judicial notice. Thus, the situation of the instant case is worse than the one dealt with by the Court of Appeal above where enrolled orders of the judgment were exhibited. It simply follows that since the NULGE Constitution 2016 is not before me, I am not in a position to speculate as to which of the conflicting interpretations is correct or what the correct interpretation is. I am not enabled to effectively perform my duty of interpretation of the provisions of the NULGE Constitution 2016, which are supposedly submitted for the interpretation of the Court.

            It follows that the claimants have not placed the very vital and most important material before the Court to assist the Court to determine the propriety or otherwise of their suit. It must also be noted that this suit has, as its main reliefs, declarative reliefs, on which the claimants must succeed on the strength of their case and not on the weakness of the defendants’ case – see Ihekoronye v. Hart & Anor (2000) LPELR-6032 (CA) 22, paras. A-C. As it is now, it is not even necessary to examine the defendants’ defence. The failure to place before the Court the necessary document to decide the case is an issue that touches the jurisdiction of the Court and ought to be raised and decided by the Court suo motu – see Shittu v. Kwara State Polytechnic, Ilorin & Ors [supra] 27-28, paras. F-A; and Omokuwajo v. FRN (2013) LPELR-20184 (SC) 38, paras. A-C.”

            In effect, the failure of the claimant herein to place before this Court, sufficient materials to determine his originating summons, negatively affects the jurisdiction of this Court to delve into what is not before it. The mere fact that the defendants did not properly controvert the depositions in the affidavit in support in their counter-affidavit does not ipso facto confer cogency in the depositions. After all, a court of law is not bound to believe an improbable or unreasonable depositions simply because, they are contained in an uncontroverted affidavit – see Anzaku v. Gov., Nassarawa State (2005) 5 NWLR (Pt. 919) 448 at 502 paras. C – F. Likewise, a court of law cannot speculate on materials not placed before it. Let me observe too, that assuming, I did not discountenance the NAAPP and had taken it into consideration, my decision would not have been different, for, I would still have come to the same conclusion, for failure of the claimant to exhibit all the other documents, aside the NAAPP. I would still have justifiably held that the suit is bad for failing to put before the Court sufficient materials to activate its equitable jurisdiction.

Before I sign off, let me draw attention to the fact that, this case is essentially asking for declaratory reliefs. Of the six reliefs claimed, only one is not declaratory and; it is a consequential relief. The Supreme Court has stated the position of law on when declaratory reliefs could be granted:

“It is the practice that a declaratory relief will be granted where the plaintiff is entitled to relief in the fullest meaning of the word. Furthermore the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant. It should also not be contrary to accepted principles upon which the court exercises its jurisdiction…” – see Chukwumah v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B.

The Court of Appeal added its voice in SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A, when it held that:

“It is trite that declarations are only made when the Court is satisfied not only as to the precise nature of the interest in respect of which the declarations are sought but if sufficient evidence further establishing the claimed interest abounds. Accordingly, it is essential for the party seeking the declarations to specifically state its interest and the facts on the basis of which it asserts that interest. The onus remains on the plaintiff, the Respondent herein, to establish its claim and the law does not allow such a claimant to rely on the weakness of or the mistake in the defendant’s case.”

The claimant had said he was employed/appointed as a soldier, shortlisted for study leave of three years, granted the study leave and issued with a pass to exist the Military Barrack, to commence the three-year study leave. These facts, he must first establish by credible evidence, to the satisfaction of the Court, before the Court could begin an enquiry into whether or not proper procedures were followed in dismissing him. He must rise and fall with these facts grounding his case. If these facts are not established, the Court cannot begin the enquiry into the propriety of granting the declarations claimed. What the learned counsel to the claimant must understand is that, declaratory reliefs, being equitable and discretionary, applicants must be above board and come clean in his case. He who comes to equity must observe equity too. This is additionally so, in the instant case, where the alleged cause of action occurred more than 9 years ago; and the claimant is just waking up to challenge the alleged unlawful dismissal, without any explanation and yet, failed to avail the Court with necessary documents. Let me conclude the judgment.

CONCLUSION

I make haste to state that, it would be plainly unlawful and inequitable for the Court to grant the declaratory reliefs claimed in the instant suit, and logically, the only ancillary non-declaratory relief, when sufficient materials have not been placed before the Court to activate its jurisdiction. The suit is equally bad for failing to place before the Court all the instruments it is being invited to construe and thus, offends against the accepted principles on which originating summons are heard and decided, as amply encapsulated in Order 3, Rule 17(1)(b) of the NICN Rules. It does not matter that the defendants improperly controverted the affidavit in support. Declaratory reliefs are not granted on the weakness or mistake in the defendant’s case but on the strength of the claimant’s case. This is exactly the /situation herein. The claimant is simply inviting the Court to grant the declaratory reliefs on the weakness of the defendants’ case and not on the strength of his case. This is against the spirit of the law. It is not possible. In view of the above, this suit is incurably bad, and liable to be dismissed. It is accordingly dismissed without cost. This is the judgment of the Court.

Judgment is accordingly entered.

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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