NIGERIAN ARMY v. PHILLIP ABAYOMI
(2019)LCN/12561(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/J/146/2017
RATIO
INTERPRETATION: MEANING OF PRECEDENT
“The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black’s Law Dictionary 5th Edition at page 1059 defines “precedent” as a “rule of law established for the first time by a Court for a particular type of case and thereafter referred to in deciding similar cases.’ The doctrine of judicial precedent is commonly referred to as the principle of stare decisis, and it is a legal principle by which Judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.'” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT HAS THE RIGHT TO DEPART FROM STARE DECISIS
“It must be stated that it is acceptable under the doctrine of stare decisis for a Court to depart from a previous decision when it appears right to do so. First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. The law is that the Court of Appeal is bound by its previous decisions, but can depart from same in the following circumstances: (i) where two decisions of the Court of Appeal are in conflict and the Court must choose between them; (ii) where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court; (iii) where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and (iv) where the previous decision was reached without jurisdiction. Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
NIGERIAN ARMY Appellant(s)
AND
PHILLIP ABAYOMI Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the interlocutory Ruling and the judgment of the National Industrial Court of Nigeria sitting in Jos delivered in Suit No NICN/JOS/17/2014 by Honorable Justice R. H. Gwandu on the 22nd of June, 2015 and 18th of March, 2016 respectively.
The Respondent, a soldier in the service of the Appellant with the rank of Corporal, was alleged to have absented himself from his Unit without permission and was consequently charged on two counts including the offence of Absent without Leave contrary to Section 59(a) of the Armed Forces Act. The Respondent was summarily tried by his Commanding Officer and was found guilty on both counts and was dismissed from the Nigeria Army on 5th of July, 2006. Aggrieved by his summary trial, conviction and dismissal, the Respondent commenced an action before the lower Court on the 13th of March, 2014 by way of Originating Summons and by which he raised two questions for determination and sought for eight reliefs.
Upon being served with the Court processes, the Appellant filed a notice of preliminary objection challenging the competence of the action on two grounds; namely (i) that the jurisdiction of the lower Court to hear the matter was caught by the statute of limitation as the action was commenced after the three months period allowed by Section 2 (a) of the Public Officers Protection Act 2004; and (ii) that the issues raised in the action were contentious issues of mixed law and facts that cannot be decided solely on affidavit evidence. The Respondent opposed the preliminary objection and the parties exchanged processes thereon. The lower Court heard the preliminary objection on the merits and it dismissed same in a considered Ruling delivered on the 22nd of June, 2015.
The Appellant also filed a memorandum of conditional appearance as well as counter affidavit and written address to the Originating Summons of the Respondent. The lower Court heard the substantive action on the merits and it found in the judgment that the Appellant breached the provisions of the Armed Forces Act in adopting the procedure of summary trial in trying and convicting the Respondent for the alleged offence and that the breach amounted to a violation of the fundamental rights of the Respondent and it therefore nullified the dismissal of the Respondent and ordered his reinstatement and payment of his salaries and emoluments from the date of the wrongful dismissal.
The Appellant was dissatisfied with both the Ruling on the preliminary objection and the judgment and, sequel to the leave obtained from this Court on the 11th of January, 2017, it caused its Counsel to file a notice of appeal against both the Ruling and the judgment of the lower Court and a notice of appeal dated the 19th of January, 2017 and containing five grounds of appeal was filed against both decisions. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 27th of April, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 4th of June, 2018. Counsel to the Respondent filed a brief of arguments dated the 13th of August, 2018 in response and the brief of arguments was deemed properly filed and served by the Court on the 7th of November, 2018. Counsel to the Appellant filed a Reply brief of arguments dated the 2nd of October, 2018 and the Reply brief of arguments was also deemed properly filed and served on the 7th of November, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether the trial Court was right in dismissing the Appellant’s preliminary objection to the Respondent?s suit and consequently assuming jurisdiction to hear and determine the suit.
ii. Whether the trial Court properly interpreted and applied the provisions of Section 117 of the Armed Forces Act 2004 upon which interpretation and application the trial Court relied in granting judgment in favour of the Respondent.
In arguing the first issue for determination, Counsel to the Appellant stated that the lower Court was in error in overruling the preliminary objection of the Appellant that challenged the competence of the suit of the Respondent on the ground of limitation of action; that the action was caught by the Public Officers Protection Act. Counsel reproduced the portion of the Ruling where the lower Court deliberated on the issue as well as the provisions of Section 2 of the Public Officers Protection Act and stated that it was an undisputed fact that the Respondent was summarily tried and dismissed by his Commanding Officer on the 5th of July 2006 and that the originating process filed by the Respondent was to challenge his summary trial and dismissal by the Nigerian Army and it was filed on the 13th of March, 2014, seven years eight months after the dismissal, and outside the three months period provided for in Section 2 of the Public Officers Protection Act.
Counsel stated that the Commanding Officer of the Respondent who carried out the summary trial and dismissal was a public officer and that the offence the Respondent was summarily tried and dismissed for was an offence that the Commanding Officer was empowered to summarily try and dismiss the Respondent for. Counsel stated that the summary trial and dismissal of the Respondent was thus an ‘act done in pursuance or execution or intended execution of an Act or Law’ as envisaged by the Public Officers Protection Act and the claim of the Respondent was not one that fell within the exception to Section 2 of the Public Officers Protection Act, as wrongly found by the lower Court. Counsel referred to the provisions of Sections 59 of the Armed Forces Act that provided for the offence of Absent without Leave and to the provision of Section 124(6) of the Act that did not exempt the offence of Absent without Leave from those subject to summary trial and to the provision of Section 116(1)(b)(i) of the Act that empowers a Commanding Officer to summarily try and dismiss a person subject to service under the rank of Warrant Officer.
Counsel stated that the Commanding Officer acted within the scope of his office in summarily trying and dismissing the Respondent and that there was nothing before the lower Court to suggest that the Commanding Officer acted without justification and/or outside the scope of his powers so as to bring the dismissal of the Respondent outside the protection afforded a public officer by the Public Officers Protection Act, as found by the lower Court, and he referred to the case of Hassan Vs Aliyu (2010) LPELR 1357(SC). Counsel stated that the facts relied upon by the lower Court in the Ruling dismissing the preliminary objection, that ‘the claimant alleged that the procedure adopted for his dismissal was outside the law and that the Commanding Officer acting alone cannot dismiss him without the Board of Enquiry first carrying out an investigation into the allegation of absence without leave, leveled against him’, did not exist anywhere in the affidavit of the Respondent in support of his originating summons.
Counsel stated that there was nothing in the affidavit of the Respondent in support of his originating summons suggesting that the Commanding Officer of the Respondent acted outside the scope of his authority or without legal justification in dismissing him. Counsel stated that all the allegations of lawlessness, malice and utmost bad faith were contained in the written address of the Counsel to the Respondent to the preliminary objection, and not in the affidavit of the Respondent, and that it is trite law that address of Counsel cannot substitute for non-existent evidence and he referred to the case of Aliucha Vs Elechi (2012) LPELR 7823(SC). Counsel stated that the Appellant filed an affidavit in support of the preliminary objection where it deposed to facts showing that the summary trial of the Respondent was fair and just and that the Respondent did not file a counter affidavit to contest the facts and that lower Court ought to have accepted the facts as true and correct and he referred to the case of Chairman Economic and Financial Crimes Commission Vs Littlechild (2015) LPELR 25199(CA).
Counsel stated that the second limb of the preliminary objection of the Appellant was that the suit was wrongly commenced by the use of originating summons and that it contended that the issue of whether or not the Appellant was given a fair hearing was not one that could be commenced by originating summons and determined by affidavit evidence as there were serious issues of fact in dispute. Counsel reproduced the reasons given by the lower Court for refusing this limb of the preliminary objection and stated that though the two questions submitted by the Respondent for determination on the originating summons sought the interpretation of provisions of the Armed Forces Act, they are questions that cannot be determined without a consideration of the facts deposed in the affidavit in support.
Counsel stated that the main issue for determination on the originating summons is whether the summary trial and dismissal of the Respondent was done in accordance with the procedure laid down by the Armed Forces Act and that the affidavit contained facts which needed to be proved in aiding the answers to the questions posed for determination. Counsel stated that the determination of the two questions was predicated on the existence or non-existence of critical and seriously disputed facts and that the suit was thus not one for commencement by originating summons and he referred to the case of Famfa Oil Limited Vs Attorney General of the Federation (2003) LPELR 1239(SC). Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
In arguing the second issue for determination, Counsel reproduced at length the portion of the judgment of the lower Court dealing with the interpretation of Section 117 of the Armed Forces Act 2004 and stated that the interpretation given to the provisions of the section was wrong as the persons envisaged in the provisions as having a right of election whether to be tried by summary trial or not are an officer, a warrant officer or petty officer, not all persons subject to service law. Counsel stated that the Respondent was a Corporal, which is a rank below that of an officer, a warrant officer or petty officer, and that this was the rank stated in all the exhibits attached by the Respondent to his originating summons, and that a Corporal is not one of those given a right of election under the provisions of Section 117 of the Armed Forces Act. Counsel reproduced the third and fourth schedule of the Armed Forces Act 2004 which he said provided for the rank structure of officers and of other personnel of the Armed Forces to emphasize the point that the Respondent, a Corporal, did not come within those given a right of election in Section 117 of the Armed Forces Act.
Counsel stated that the duty of a Court in the interpretation of statute is to give the wordings of a provision their ordinary and literal meanings where the words used are plain, clear and unambiguous and that it is settled law that where a statute mentions specific things or persons, the intention of the legislation is that those not mentioned are not intended to be included and he referred to the cases of A. G. Kano State Vs A. G. Federation (2007) 6 NWLR (Pt 1029) 164, Uwazurike Vs A. G. Federation (2007) LPELR 34448(SC) and International Standards Securities Vs Union Bank of Nigeria Plc (2009) LPELR 8788(CA). Counsel stated that if the lower Court had approached the interpretation of Section 117 of the Armed Forces Act with these principles, it would have seen that the category of persons referred to therein as having a right of election not to be tried by summary trial did not include persons of ranks lower than officer, warrant officer and petty officer.
Counsel stated that the issue of the Respondent not being given an option in writing to choose to be tried by Court Martial or tried summarily pursuant to the provisions of Section 117 of the Armed Forces Act was not raised by the Respondent at the trial Court and no issue was joined by the parties on the provisions of Section 117 of the Armed Forces Act throughout the proceedings before the lower Court. Counsel stated that it was the lower Court that raised the issue suo motu in the judgment and it relied on its erroneous interpretation of same to arrive at its decision in the judgment and thus occasioned a miscarriage of justice. Counsel stated that while the lower Court has the power to raise an issue suo motu, it was imperative that the Court gives the parties an opportunity of presenting arguments on the issue before basing its decision on it and he referred to the case of Adegoke Vs Adibi (1992) LPELR 95(SC). Counsel stated that perhaps if the lower Court had given the parties the opportunity of addressing it on the issue, it would not have come to the conclusion that the Respondent was one of those covered by the provisions of Section 117 Armed Forces Act. Counsel stated that the concept of fair hearing relied upon by the lower Court in nullifying the dismissal of the Respondent was inapplicable in the circumstances of this case. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.
In his response, Counsel to the Respondent adopted the two issues for determination formulated by Counsel to the Appellant, with minor modifications.
In arguing the first issue for determination, Counsel stated that the case of the Respondent before the lower Court was that his fundamental right to fair hearing as guaranteed by the Constitution and the Armed Forces Act was breached and that this took his case within the exception to the applicability of the Public Officer Protection Act. Counsel stated that the lower Court correctly found that the case of the Respondent fell outside the provisions of the Public Officers Protection Act because the protection under the Act will not avail a public officer who acted outside the scope of his authority or without a semblance of legal justification. Counsel stated that the question before the lower Court was not whether the offences with which the Respondent was charged could be tried summarily or whether the Commanding Officer had the power to try the Respondent summarily and to dismiss him, but whether in carrying out the trial and dismissal of the Respondent the right procedure was followed.
Counsel stated that the issue was whether the Respondent was given the opportunity of choosing his preferred mode of trial as provided for in Section 117 of the Armed Forces Act, in line with the principle of fair hearing provided in the Constitution. Counsel stated that the Respondent was not given the opportunity at the disciplinary hearing by the Commanding Officer and it was thus irrelevant whether the Respondent was tried in absentia and in his presence. Counsel stated that he who asserts has the onus of proof and that it was the Appellant that had the onus of proving that the Respondent was given a fair hearing at the disciplinary hearing and that the Appellant failed woefully in doing so. Counsel stated that the issue of fair hearing is fundamental and it postulates that where an employee is accused of misconduct and disciplinary action is to be taken, such employee must know the case against him, what evidence against him is or what statement has been made against him and be afforded a fair opportunity to correct or contradict them and he referred to the case of Aiyetan Vs Nig. Institute for Oil Palm Research (1987) 3 NWLR (Pt 59) 48. Counsel stated that the failure of the Commander Officer of the Respondent to adhere to the principle of fair hearing rendered the entire proceedings a nullity and that this automatically took his actions outside the protection offered by the Public Officers Protection Act and he referred to the cases of Offoboche Vs Ogoja LG (2001) 16 NWLR (Pt 739) 458 and Head of the Federal Military Government Vs Public Service Commission: Ex Parte Kubeinje (1974) 11 SC 79.
On the second limb of the preliminary objection; that the use of originating summons was improper, Counsel stated that the two questions submitted by the Respondent for determination sought for the interpretation of statutes, the Armed Forces Act and the Constitution of the Federal Republic of Nigeria, and that this fact was admitted by Counsel to the Appellant. Counsel stated that the use of the originating summons does not mean there is no dispute at all on the facts, but that such disputes are not substantial and material and Counsel to the Appellant submitted that there were substantial disputes on the facts without pointing out or making reference to any such material contentious facts and he referred to the case of Ezeigwe Vs Nwawulu (2010) 4 NWLR (Pt 1183) 159 and the unreported decision of this Court in The Nigerian Army Vs Olusegun Ogundipe delivered on the 19th of June, 2018.
Counsel stated that, even assuming that the mode of commencement of the action was faulty, it cannot on its own rob the lower Court of the jurisdiction to adjudicate on the case that it ordinarily has jurisdiction to hear and determine and he referred to the case of Udoh Vs RTBC & S (2013) 14 NWLR (Pt 1375) 488. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.
In arguing the second issue for determination, Counsel stated that the complaint of the Counsel to the Appellant that the lower Court misinterpreted the provisions of Section 117 of the Armed Forces Act was misconceived and that the first question formulated on the originating summons called for the interpretation of Sections 59, 116(1)(a) and 117 of the Armed Forces Act and that in resolving the question, the lower Court looked at the provisions of Section 50, 59, 117, 123, 125 and 166 of the Armed Forces Act. Counsel stated that the lower Court was at liberty to look at the other provisions of the Act relevant to the question formulated and was not limited in its deliberations to only the sections referred to by the Respondent and he referred to the cases of Orugbo Vs Una (2002) LPELR 2778(SC) and Tuoyo Vs Agba (2014) LPELR 24533(CA).
Counsel stated that the Appellant did not contend before the lower Court that the Respondent was not in the category of the persons who have the right of election of their trial by Court Martial or summary trial under Section 117 of the Armed Forces Act and that the law is that a party cannot make a case on appeal different from the case canvassed in the lower Court and he referred to the case of Okenwa Vs Military Governor, Imo State (1996) 2 NWLR (Pt 455) 394 and the unreported decision of this Court in The Nigerian Army Vs Olusegun Ogundipe delivered on the 19th of June, 2018. Counsel stated that contrary to the submission of Counsel to the Appellant, Section 291 of the Armed Forces Act shows that the words ‘an officer, warrant officer or petty officer’ includes a Corporal, which was the Respondent’s rank and he thereafter reproduced the definition of warrant officer or petty officer as contained in Section 291 and Fourth Schedule of the Act to drive home his point.
Counsel stated that if the provisions of Section 117 of the Armed Forces Act are interpreted to exclude certain categories of persons then it conflicts with the provisions of the Constitution which guarantees equality before law and justice to all persons and that since the Constitution is supreme, the provisions of Section 117, by virtue of Section 1(3) of the Constitution, will be void to the extent of their inconsistency and he referred to the case of FBN Plc Vs TSA Industries Ltd (2010) LPELR 1283(SC). Counsel stated that it is incorrect that the lower Court raised the issue of right of election of mode of trial under Section 117 of the Armed Force Act suo motu as the issue of the interpretation of Section 117 was formulated as one of the questions for determination and the fact that no arguments were canvassed thereon was inconsequential and that, in doing justice, a Court was not confined to limit itself to the provisions of the law or the sections referred for determination by the parties and he referred to the cases of Orugbo Vs Una supra and Tuoyo Vs Agba supra. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
The parties formulated and were agreed that two issues arise for determination in this appeal. The first issue for determination is in respect of the Ruling of the lower Court dismissing the preliminary objection of the Appellant while the second issue for determination was distilled from the final judgment of the lower Court. Under the first issue for determination Counsel to the parties contended on two points ” (i) whether the lower Court was correct when it found that the case of the Respondent was not caught by the protection afforded public officers by the Public Officers Protection Act; and (ii) whether the lower Court was correct when it found that the originating summons procedure used in commencing the suit was appropriate. Under the second issue for determination, Counsel to the parties also contended on two points ? (ii) whether the lower Court was correct when it found that the rank of the Respondent fell within those covered by the provisions of Section 117 of the Armed Forces Act as having a right of election as to whether to be tried by Court Martial or by summary trial; (ii) whether or not the question of the rank of the Respondent falling within those mentioned in Section 117 of the Armed Forces Act as having a right of election was not raised suo motu and decided by the lower Court without giving the parties an opportunity to address on it.
This appeal is not a lone appeal. The lower Court gave similar Rulings and judgments in some other cases on the same dates as the Ruling and judgment appealed against in the present appeal. The Appellant filed appeals against the other Rulings and judgments and one of such appeal was Appeal No CA/J/158/2017.
The Nigeria Army Vs Olusegun Ogundipe and in which this Court delivered judgment on the 19th of June, 2018. In that case, the action was commenced by originating summons and the same two questions, as in the present case, were raised for determination. The Appellant filed a preliminary objection in that case to challenge the appropriateness of the originating summons procedure and also a counter affidavit to contest the case on the merits. The lower Court delivered a Ruling on the 22nd of June, 2015 dismissing the preliminary objection and thereafter heard the substantive case and gave judgment holding, as it did in the instance case, that Appellant breached the provisions of the Armed Forces Act in adopting the procedure of summary trial in trying and convicting the respondent in that case, who was a Private, without giving him a right to elect his mode of trial. The Appellant appealed to this Court and in the judgment delivered on the 19th of June, 2018, this Court held that the originating summons procedure adopted was proper and also made findings that suggested that the lower Court was correct in interpreting the words ‘officer, warrant officer and petty officer’ in Section 117 of the Armed Forces Act to include the respondent in the matter who was a Private.
The question of the appropriateness of the use of originating summons in similar circumstances is the second contention of the Appellant in the present appeal under the first issue for determination while the question of whether the words ‘officer, warrant officer and petty officer’ in Section 117 of the Armed Forces Act include the Respondent, a Corporal, who is higher in rank that a Private, is the first contention of the Appellant under the second issue for determination. Now, Nigeria is a common law country and the foundation upon which the common law system is erected is the doctrine of judicial precedent. In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a Court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained.
Black’s Law Dictionary 5th Edition at page 1059 defines “precedent” as a “rule of law established for the first time by a Court for a particular type of case and thereafter referred to in deciding similar cases.” The doctrine of judicial precedent is commonly referred to as the principle of stare decisis, and it is a legal principle by which Judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”
In a legal con, this is understood to mean that Courts should generally abide by precedent and not disturb settled matters. Its meaning is that when a point of law has been once solemnly and necessarily declared by the decision of a competent Court, it will no longer be considered open to an examination, or a new ruling, by the same Court or tribunal or by those which are bound to follow its adjudications. In other words, they should keep the scale of justice even and steady and not liable to waver with every Judge’s opinion. Adesokan Vs Adetunji (1994) 5 NWLR (Pt 345) 540, Okeke Vs Okoli (2000) 1 NWLR (Pt 642) 641, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1.
The doctrine postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case ? Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674. The reasons which underlie this rule were stated by Chancellor Kent, in a much quoted passage from his Commentaries, as follows:
‘A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a Court of Appeal or review, and never by the same Court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.’ (1 Kent’s Commentaries at page 475)
Similarly, Judge Cooley observed:
‘Even if the same or any other Court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his rights and his duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable.? (Cooley, Constitutional Limitations, page 50)
The concept of stare decisis is the foundation upon which the consistency of the Nigerian judicial system is based – Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules and it does not involve an exercise of judicial discretion; it is mandatory. Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227 and Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347. In Nigeria, the maintenance of this doctrine is of peculiar importance on account of the deference which we are accustomed to pay to the decisions of the law Courts, even in cases where their logical correctness is open to doubt.
This recognition of the power and province of the judicial tribunals in the guidance and settlement of our civil institutions, leads the Nigerian citizen to yield his implicit obedience to their doctrines even when the decision of a Court lays a controlling and shaping hand, not formally, perhaps, but in the necessary deductions from its conclusions, upon the most zealously debated political questions, or the most important affairs of government. Then if progress be desirable, if the growth of the nation, in the perfect development of constitutional government, as well as in the stability of its institutions, be a desideratum, these objects can certainly not be attained by a disregard of the principle of stare decisis.
It must be stated that it is acceptable under the doctrine of stare decisis for a Court to depart from a previous decision when it appears right to do so. First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. The law is that the Court of Appeal is bound by its previous decisions, but can depart from same in the following circumstances: (i) where two decisions of the Court of Appeal are in conflict and the Court must choose between them; (ii) where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court; (iii) where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and (iv) where the previous decision was reached without jurisdiction. Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482.
It is however, not a power that the Court can exercise willy-nilly. The Court must be prayed to do so and the party so praying must make out a serious case of error in and injustice occasioned by the decision, before the Court can do so. Odi Vs Osafile (1985) 1 NWLR (Pt 1) 17, Bucknor-Macleans Vs Inlak Motors Ltd (1980) 8-11 SC 1, Williams Vs Daily Times (Nig) Ltd (1990) 1 NWLR (Pt 124) 1, Effiom Vs State (1995) 1 (Pt 373) 507. Counsel to the Appellant did not pray this Court to depart from its earlier decision in Appeal No CA/J/158/2017. The Nigeria Army Vs Olusegun Ogundipe delivered on the 19th of June, 2018. Therefore, this Court has no business deviating from the decision. The second question contended by the Appellant under the first issue for determination ‘whether the originating summons procedure was the appropriate procedure for commencing the present action, and the first question contended under the second issue for determination ‘whether the lower Court was correct in its interpretation of the words ?officer, warrant officer and petty officer’ in Section 117 of the Armed Forces Act to include the Respondent, a Corporal, are resolved against the Appellant, on the strength of the decision of this Court in Appeal No CA/J/158/2017 ? The Nigeria Army Vs Olusegun Ogundipe.
This leaves the first point contended under the first issue for determination ‘whether the lower Court was correct when it found that the case of the Respondent was not caught by the protection afforded public officers under the Public Officers Protection Act; and the second point contended under the second issue for determination’ whether or not the question of the rank of the Respondent falling within those mentioned in Section 117 of the Armed Forces Act as having a right of election was raised suo motu and decided by the lower Court without giving the parties an opportunity to address on it. These are the two questions that this Court will resolve in this appeal. The first one was not contended and/or decided by this Court in Appeal No CA/J/158/2017.
The Nigeria Army Vs Olusegun Ogundipe while the second one is strictly a question peculiar to the facts of each case. The two questions will be resolved seriatim.
On the first issue for resolution, Counsel to the Appellant argued that the action of the Respondent before the lower Court was statute barred and thus incompetent as it was commenced outside the three months period allowed for such action by the Public Officers Protection Act. Counsel submitted that the Respondent was summarily tried and dismissed by his Commanding Officer on the 5th of July 2006 and that the originating process of the Respondent challenging his summary trial and dismissal by the Nigerian Army was filed on the 13th of March, 2014, seven years eight months after the dismissal. The relevant provision of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990 relied upon by the Appellant is Section 2 (a) which states:
2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect ?
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damages or injury within three months next after ceasing thereof
This is a limitation of action provision and its substance is that an action against any person in respect of any act done in pursuance or in execution of any Act or Law of any public duty or authority or in respect of something done in execution of such Act, Law, duty or authority shall not be commenced after the expiration of three months from the date of the occurrence complained of, and where the occurrence is a continuing one, three months after the ceasing thereof. Now, limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions.
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed ? Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524, Aremo II Vs Adekanye (2004) 13 NWLR (Pt 891) 572, Yakubu Vs NITEL (2006) 9 NWLR (Pt 985) 367, Williams Vs Williams (2008) 10 NWLR (Pt 1095) 364. A legal right to enforce an action is not a perpetual right but a right generally limited by statute. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer competently institute an action ? Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1, Muemue Vs Gaji (2001) 2 NWLR (Pt 697) 290, Adeosun Vs Jibesin (2001) 11 NWLR (Pt 724) 290.
So, when an action is said to be statute barred, what it connotes is that the claimant may have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action ? Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt 359) 676, PN Udoh Trading Co. Ltd Vs Abere (1996) 8 NWLR (Pt 467) 479, Industrial Training Fund Vs Nigerian Railway Corporation (2007) 3 NWLR (Pt 1020) 28. In other words, in an action caught by limitation law, it is not that a claimant does not have a right of action or a competent cause of action, but only that the cause of action or the right of action is unenforceable ? Ogunko Vs Shelle (2004) 6 NWLR (Pt 868) 17, Olagunju Vs Power Holding Company of Nigeria Plc (2011) 10 NWLR (Pt 1254) 113.
The protection provided by Section 2 of the Public Officers Protection Act is however not a free for all protection. Two conditions must coexist before a person can avail himself of the protection and these are (i) the person must be a public officer; and (ii) the act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority. Central Bank of Nigeria Vs Okojie (2004) 10 NWLR (Pt 882) 488, Hassan Vs Aliyu (2010) 17 NWR (Pt 1223) 547. Where either of these conditions is missing, the person concerned does not come under the provisions of Section 2 of the Public Officers Protection Act and an action against him is not caught by the three months limitation period.
In the instant case, in rejecting the plea of limitation of action of the Appellant, the lower Court stated in the Ruling thus:
“In the instant case, there is no doubt the Respondent is a public officer and as such is protected by the Public Officers Protection Act.”
However, it seemed to me that being a public officer in this case will not be amongst the reasons to invoke the provisions of Section 2(a) of the Public Officers Protection Act.
To my mind it will seem that the Claimant’s claim is hinged on the facts of the public officer acting outside the scope of his authority and/or acting without legal justification in dismissing the Claimant. I hold that the claim of the Claimant seeks the Court’s intervention to answer the question of lack of fair hearing on the part of the Respondent in the process of dismissing him. The allegation of violation of the right of fair hearing is a constitutional matter which should not be treated lightly. In fact in paragraph 16 a-d of the Claimant?s affidavit, the Claimant alleged that the procedure adopted for his dismissal was outside the law and that the Commanding Officer acting alone cannot dismiss him without the Board of Enquiry first carrying out an investigation into the allegation of absence without leave, leveled against him.
I am satisfied that the Claimant’s claim is an example of those cases which falls under the exceptions to the Section 2 of the Public Officers Protection Act. To this end therefore I hold that the claim of the Claimant is not statute barred.
It was not in contest between the parties in this case that the Appellant met the first requirement for protection under Section 2 of the Public Officers Protection Act, i.e. that it is a Public Officer, and the lower Court made a finding in respect thereof and there is no appeal against the finding. The contest was on whether the Appellant met the second requirement for the protection, i.e. that the act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority.
It is settled law that a claimant can defeat the case of a defendant who seeks reliance on the provisions of Section 2 of the Public Officers Protection Act by showing or alleging that the defendant actions were actuated by other motives such as spite, malice or personal interest rather than by spirit of law in the execution of the public duty or authority and that he acted outside the confines of the law. In Nwankwere v. Adewunmi (1966) 1 All NLR 129 at 133-134 Brett, J.S.C, said:
“The Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”
In Lagos City Council v. Ogunbiyi (1969) 1 All NLR 297, 299 the Supreme Court, per Ademola, C.J.N. said:
“… the Act necessarily will not apply if it is established that the defendant had abused his position for purposes of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavoring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.”
In Offoboche Vs Ogoja Local Government (2001) 16 NWLR (Pt 739) 458, Ayoola, JSC, explained the point further that:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which the power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention a few.”
In Hassan Vs Aliyu supra, Onnoghen, JSC (as he then was) reiterated the position thus at page 591 B-D:
‘It is however correct that where a public officer acts outside the scope of his authority and without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection act. It is the duty of plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification etc, etc. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification etc, etc otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same.’
The facts of this case are straightforward. The Respondent, a soldier in the service of the Appellant with the rank of Corporal, was alleged to have absented himself from his Unit without permission and was consequently charged with the offence of Absent without Leave contrary to Section 59(a) of the Armed Forces Act. The Respondent was summarily tried by his Commanding Officer and was found guilty on both counts and was dismissed from the Nigeria Army on 5th of July, 2006. It is not in contest in this appeal that the Commanding Officer of the Respondent possessed the power and authority under Section 116 of the Armed Forces Act to summarily try and dismiss the Respondent from the Nigerian Army for the offence of Absent without Leave brought pursuant to Section 59(a) of the Armed Forces Act. The question that arises on this issue in this appeal is ? are there facts on record from which this Court can agree with the lower Court and the Respondent that the Commanding Officer of the Respondent acted outside the scope of his authority or without the semblance of legal justification in summarily trying and dismissing the Respondent for the offence of Absent without Leave brought pursuant to Section 59(a) of the Armed Forces Act.
To answer this question, this Court must look at only the facts contained in the affidavit of the Respondent in support of his originating summons. It is pertinent to note that the issue of limitation of action was raised by the Appellant at the preliminary stage. The law is that in resolving the issue of limitation of action at such a stage, the Court must have regards only to the averments or depositions of a claimant contained in the statement of claim, in an action commenced by a writ of summons, or in the affidavit, in an action commenced by originating summons ? Ajayi Vs Military Administrator, Ondo State (1997) 5 NWLR (Pt 504) 237, Woherem Vs Emereuwa (2004) 13 NWLR (Pt 890) 398, Kasandubu Vs Ultimate Petroleum Ltd (2008) 7 NWLR (Pt 1086) 274. In Amata Vs Omofuma (1997) 2 NWLR (Pt 485) 93 at 109 A-B Nsofor, JCA made the point thus:
‘The Statute of Limitation of Actions is a statute limiting the plaintiff’s action. Not the defendant’s ‘action’, where the defendant is no more than a defendant and has no ‘action’ because only and only because he did not file a counter-claim in the sense I was discussing above. If it is the plaintiff’s action that the statute of limitation is sought to pitch against, then necessarily one has to have resort to and scrutinize and examine the facts, the factual situation the plaintiff is relying on to claim the relief sought for. And if it is not the defendant’s ‘action’ that is sought to pitch against with the plea of limitation of action then, a fortiori, resort ought not be had to the pleadings of, the facts or factual situation of the defendant to ascertain the applicability or not of the statute.”
The affidavit of the Respondent in support of his originating summons in the lower Court contained twenty-six paragraphs of depositions. The case of the Respondent on the affidavit was that he was recruited into the Nigerian Army on the 9th of January, 1987 and that he served in Sierra Leone and Liberia and that he received several trainings in the course of his service and won an award in bungling and that he was a loyal, faithful and dedicated military personnel. It was his case that on the 30th of March, 2005, he was posted from HQ NACSTS in Benin to the 930 Div Workshop in Jos and that he obtained a pass from his former Unit in Benin and reported in Jos on the 26th of May, 2005 and that upon his reporting in Jos, he was requested by the Chief Clerk’s Office to go back to his former Unit to obtain some further documentations. It was his case that he returned to the Unit in Benin on the 28th of May, 2005 and reported at the Chief Clerk’s Office there and whereat he was informed that all necessary documentations on his posting had been transmitted to Jos and that all that was left was for him to close his account in Benin to enable him open another account in Jos.
It was the case of the Respondent that he completed all processes leading to the closure of the account and fulfilled all other requirements relating to his posting on the 30th of September, 2005 and that he reported in Jos on the 3rd of October, 2005 and completed all the transfer protocols thereat. It was his case that he was directed by the Chief Clerk in Jos to return to his Unit in Benin and report back to the Unit in Jos on the 30th of January, 2006 and he did as directed and that on his way to Jos from Benin in January, 2006 he was involved in an accident in Abuja and that he was unconscious and was hospitalized. It was his case that when he regained consciousness, he was detained by the Nigerian Police for investigation on the allegation of possession of a narcotic substance that was found in the vehicle that he travelled in from Benin and that he was so detained until the 4th of March, 2006 when the office of the Provost Marshall of the Nigeria Army secured his release and he was cleared of the allegation.
It was his case that these events were communicated by signals from the office of the Provost Marshall to the 930 Div Workshop in Jos on the 6th of May, 2006 and that he was again detained in the office of the Provost Marshall in line with military protocol where allegations of possession of narcotic substance are made against a person under Service Law. It was his case that he was eventually tried and surprisingly dismissed on the 5th of July 2006 on the ground of being Absent without Leave for six months despite his Unit being aware of all the reasons for his absence. It was his case that he wrote several letters of appeal for review of his dismissal and was constantly informed that his requests were under process and that he had been dismissed for a period of eight years, as at the time of filing the action. It was his case that he was a good soldier and was still healthy and sufficiently energetic to continue his service to the Nigerian Army and that if the Appellant was not restrained his career will have been terminated at the whims and caprice of one man, acting alone.
This was the entire case of the Respondent on the affidavit in support of the originating summons. In none of the depositions did the Respondent alleged abuse of office, malice or bad faith on the part of his Commanding Officer in summarily trying and dismissing him. The Respondent did not allege or even suggest that the Commanding Officer acted outside the scope of his power or authority and/or that the Commanding Officer acted without the semblance of legal justification. Nowhere in the depositions did the Respondent allege or suggest a violation of his right to fair hearing and/or that ?the procedure adopted for his dismissal was outside the law and that the Commanding Officer acting alone cannot dismiss him without the Board of Enquiry first carrying out an investigation into the allegation of absence without leave, leveled against him? as found by the lower Court. There are no paragraphs 16 a-d in the affidavit of the Respondent, as stated by the lower Court. The deposition that if the Appellant was not restrained his career will have been terminated ?at the whims and caprice of one man, acting alone? is nebulous, vague and meaningless and there was no elucidation on it in the affidavit. The only visible allegation of the Respondent deducible from the depositions is that the Commanding Officer committed an error in judgment in dismissing him for being Absent without Leave, and nothing more, and this does not equate to bad faith or abuse of office. Offoboche Vs Ogoja Local Government supra, Dukoke Vs Inspector General of Police (2011) LPELR 4287(CA).
It was in the written address of Counsel to the Respondent in arguing the originating summons that allusions were made to issue of lack of fair hearing; that the Commanding Officer acting alone cannot dismiss the Respondent without the Board of Enquiry first carrying out an investigation into the allegation of absence without leave made against him. It is elementary that the submissions of Counsel do not equate to and cannot be substituted for averments in a pleadings or depositions in an affidavit; they do not amount to facts in support of a case of a party. Ayorinde Vs Sogunro (2012) 11 NWLR (Pt 1312) 460, BFI Group Corporation Vs Bureau for Public Enterprises (2012) 18 NWLR (Pt 1332) 209. It is obvious that the lower Court acted on conjectures and facts that did not form part of the case presented by the Respondent in rejecting the Appellant’s plea of limitation of action. It is forbidden for a Court of law to rely on conjectures and/or to make a case for a party different from the case presented before it by that party ? Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179, Baliol (Nig) Ltd Vs Navcon (Nig) Ltd (2010) 16 NWLR (Pt 1220) 619, Adebiyi Vs Umar (2012) 9 NWLR (Pt 1305) 279.
There was nothing in the facts presented by the Respondent in support of his case suggesting that the Commanding Officer of the Appellant was actuated by other motives such as spite, malice or personal interest rather than by spirit of law in the execution of the public duty or authority and that he acted outside the confines of the law in summarily trying and dismissing the Respondent. The lower Court was thus in error when it found that the Appellant was not entitled to the protection provided by Section 2(a) of the Public Officers Protection Act and its decision thereon was perverse and liable to be set aside. The Respondent was dismissed by the Appellant on the 5th of July, 2006 and he commenced the present action before the lower Court on the 13th of March, 2014; a period of about eight years thereafter. This is clearly outside the three months period allowed by Section 2(a) of the Public Officers Protection Act. The action was statute barred and the first issue for resolution in the appeal is determined in favour of the Appellant.
This takes us to the second issue for resolution in this appeal – whether or not the question of the rank of the Respondent falling within those mentioned in Section 117 of the Armed Forces Act as having a right of election was raised suo motu and decided upon by the lower Court without giving the parties an opportunity to address on it.
The case of the Respondent, as presented in the affidavit in support of the originating summons, has been summarized above. In the written address submitted in adumbration of the case on the originating summons, the contention of Counsel to the Respondent was predicated on three grounds; namely (i) that the Respondent was summarily tried and dismissed by the Commanding Officer in absentia and without affording him a hearing and an opportunity to defend himself and that this was in breach of his right to fair hearing; (ii) that the Commanding Officer summarily tried and found the Respondent guilty of being Absent without Leave without a Board of Inquiry having first investigated the allegation and that this was in violation of the provisions of Sections 123 and 173(1) of the Armed Forces Act; and (iii) that dismissal from service was not one of the punishments prescribed in Section 116(a) of the Armed Forces Act for a person of the rank of the Respondent found guilty of being Absent without Leave and that the dismissal of the Respondent was thus outside the Law. It must be stated that these submissions had no foundation in the facts deposed in the affidavit in support of the originating summons; this is however not the focus of the inquiry under this issue for determination.
In its response, the Appellant deposed to a counter affidavit wherein it denied the case of the Respondent and stated that the Respondent was posted to 930 Div Workshop in Jos from the HQ NACSTS Benin and was issued a three days posting pass from the 26th of May to the 28th of May, 2005 to enable him report at his new Unit, but that the Respondent went on a frolic of his own and did not report at his new Unit nor was he seen at his old Unit between that date and the 28th of September, 2005. It was its case that when the Respondent finally reported at his new Unit in October 2005, he was directed to resume fully in January, 2006 and that nothing was thereafter heard from the Respondent until the 6th of March, 2006 when he was handed over to the Guards Brigade in Abuja by the Nigerian Police who arrested him for unlawful possession of substances suspected to be Indian Hemp, undercover of a letter with an Investigation Report attached.
It was the case of the Appellant that a letter dated 30th of March, 2006 was addressed to the Respondent?s former Unit to confirm if he had been there all the while and that the response was in the negative and whereupon a Board of Inquiry was convened to look into the circumstances of the absence of the Respondent without leave and the Board submitted a report of its findings. It was its case that the report of the Board of Inquiry was reviewed and upheld on the 5th of May, 2006 and that the Nigeria Military Police Jos also conducted an investigation into the absence of the Respondent without leave and it submitted a report dated the 5th of June, 2006. It was its case that consequent on both reports, the Respondent was charged on two counts and was tried by the Commanding Officer and was found guilty and punished in accordance with the provisions of the Armed Forces Act. It was its case that the Respondent was accorded fair hearing and he was unable to provide sufficient reason to justify his absence without leave for a cumulative period of six months and that it was incorrect that the Respondent was informed at anytime that his request for a review of his dismissal was under process.
In the written submission filed in support of the counter affidavit, Counsel to the Appellant responded to the three contentions of the Counsel to the Respondent and canvassed (i) that the Respondent was not tried in absentia and was present throughout his trial and was accorded full opportunity to defend the charges against him and that the Respondent did not provide any evidence to contest the allegations against him; (ii) that a Board of Inquiry was convened to look into the circumstances of the Respondent?s absence without leave and the report of the Board was considered, reviewed and confirmed before charges were brought against the Respondent; and (iii) that the applicable provisions on punishment in the Armed Forces Act applicable to the Respondent was Section 116(b), and not Section 116(a) and that dismissal was one of the punishments prescribed therein.
In granting the claims of the Respondent, the lower Court found that the Respondent was properly charged and that dismissal was one of the prescribed punishments for the offences with which the Respondent was charged and it continued thus:
however we must look at the provisions of Sections 123 and 117 of the Armed Forces Act to be fully able to do justice to this matter.
Section 123 – Before an allegation against a person subject to service law under this Act (in this Section referred to as the accused) that he has committed an offence under a provision of this Act is further proceeded with, the allegation shall be reported in the form of a charge to the Commanding Officer of the accused and the Commanding Officer shall investigate the charge in the prescribed manner.
Section 117 – Notwithstanding anything in the foregoing sections of this Act, a Commanding Officer shall not proceed summarily with the trial of an officer, a warrant officer or petty officer until he has afforded the officer, warrant or petty officer an opportunity of electing to be tried by a Court Martial and if the person so elects in writing, the Commanding Officer shall take the prescribed steps with a view to the charge being tried by a Court Martial.
Having reproduced these Sections, it is clear that where a Commanding Officer has investigated a charge against an accused, he must take steps as prescribed by the Act, that is he may either take steps to bring the soldier before a Court Martial or try the soldier summarily and punish him under Section 116(b) ?, but he must give the accused an option to choose as stipulated by Section 117. There is no document before the Court to prove that the Claimant was given an option in writing to choose whether to be tried by Court Martial or tried summarily in accordance with the above Section….
From the foregoing, it is very clear that the Commanding Officer breached its own rules and regulations and laid down rules of natural justice since he failed to carry out the duty imposed on him by Section 117 but used his discretion to summarily try the Claimant and dismiss him. In view of this, he was acting in direct violation of the Armed Forces Act, an act that cannot in itself stand as it lacks the backing of the law that he derives his authority from.
Thus, as a result of not affording the accused the option of choosing his preferred trial method, he violated his right to fair hearing, it is therefore correct to say his fundamental right to fair hearing was totally breached.
In other words, the lower Court placed reliance on the provisions of Section 117 of the Armed Forces Act and interpreted the provisions and found that the Respondent, a Corporal, came within the phrase ‘an officer, a warrant officer or petty officer’ stated therein and that the provisions of the section applied to him. The lower Court concluded there from that the Respondent was entitled to be given a right of election of his mode of trial, and which right was not afforded him by the Commanding Officer, and that this constituted a breach of his right to fair hearing.
Now, reading through the cases put forward by the parties in their respective affidavits and arguments canvassed by the Counsel to the parties in their respective written addresses, they did not join issues on whether the Appellant breached the right of the Respondent to fair hearing by denying him the right of election of his mode of trial, whether it should be by Court Martial or summary trial. The issue was not raised or canvassed by the Respondent either in his affidavit or in the arguments of his Counsel. In fact, neither of the parties reproduced the provisions of Section 117 of the Armed Forces Act or canvassed arguments touching on the provisions of the section in their respective written addresses. It is elementary that a fresh issue or point of law is a new point of law that was not raised by any of the parties at the hearing of the case ? First Bank of Nigeria Plc Vs Akparabong Community Bank Plc (2006) 1 NWLR (Pt 962) 438 at 461, Olalomi Industries Ltd Vs Nigerian Industrial Development Bank Ltd (2009) 16 NWLR (Pt 1167) 266, Direct On PC Ltd Vs SOF Technologies Ltd (2011) LPELR 4042(CA).
It is correct that Counsel to the Respondent mentioned the interpretation of Section 117 of the Armed Forces Act as part of the first issue for determination formulated in his written address before the lower Court, but he made no reference to the section or to its provision neither did he say anything in respect thereof throughout his arguments in the address. It is settled that an issue for determination in respect of which no arguments is canvassed is deemed abandoned and cannot be resolved or relied upon by a Court ? Are Vs Ipaye (1986) 3 NWLR (Pt 29) 416, Ikpuku Vs Ikpuku (1991) 5 NWLR (Pt 193) 591, Ajibade Vs Pedro (1992) LPELR 297(SC), Institute of Health, ABU Hospital Management Board Vs Anyip (2011) LPELR 1517(SC).
The contention of Counsel to the Respondent that the fact that the parties did not proffer arguments on Section 117 of the Armed Forces Act and its applicability to the case of the Respondent was inconsequential and that since an allusion was made to the provisions of the section, the lower Court was at liberty to deliberate on it and come to any conclusion it finds justifiable on the meaning and effect of provision, is not well founded. This is because decisions of a Court of law must not be founded on any ground in respect of which it has neither received arguments from or on behalf of the parties before it nor even raised by or for the parties or either of them. Animashaun Vs Osuma (1972) 4 SC, 200, Shitta-Bey Vs Federal Public Service Commission (1981)1 SC 40, Saude Vs Abdullahi (1989) 4 NWLR (Pt 116) 387, Kraus Thompson Organization Ltd Vs University of Calabar (2004) 9 NWLR (Pt 879) 631,Total Engineering Services Team Inc Vs Chevron Nigeria Ltd (2017) 11 NWLR (Pt 1576) 187. In Akere Vs Governor, Oyo State (2012) 12 NWLR (Pt 1314) 240, the Supreme Court stated that ?the Court?s role in adjudicating is to decide on matters as presented before it in the pleadings and oral evidence and so when an issue is not placed before a Court of law, it has no business whatsoever to deal with it.
The point was reiterated by the Supreme Court in its recent decision in Wagbatsoma Vs Federal Republic of Nigeria (2018) LPELR 43722(SC). The issue canvassed by the parties before the trial Court in that case was whether certain offences charged before the High Court came within the provisions of the Admiralty Jurisdiction Act, and by Section 19 of which Act the Federal High Court possesses exclusive jurisdiction. The trial Court in its Ruling held that the provisions of Section 19 of the Admiralty Jurisdiction Act, to the extent that it sought to curtail the jurisdiction vested in the High Court by Section 272 of the 1999 Constitution to try criminal, was inconsistent with the Constitution and was thus liable to be struck out. On appeal and further appeal to the Supreme Court, it was held that since the parties did not join issue on the inconsistency of Section 19 of the Admiralty Jurisdiction Act with the provisions of the Constitution and canvassed no argument thereon, the consideration of the issue by the trial Court amounted to raising an issue suo motu.
The issue of whether the Appellant breached the right of the Respondent to fair hearing by denying him the right of election of his mode of trial, whether it should be by Court Martial or summary trial, was not an issue that could be inferred or deducted from the evidence or arguments of the parties. It was a fresh issue or point of law raised suo motu by the lower Court in the course of the judgment. The lower Court did not give the parties the opportunity to address it on the import of the provisions of Section 117 of the Armed Forces Act on the case presented by them before deciding the issue.
The law on a Court raising an issue suo motu is settled. It is trite that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice. Sodipo Vs Lamminkainen OY (1986) 1 NWLR (Pt 15) 220, Ijebu Ode Local Government Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Africa Continental Bank Plc Vs Losada (Nig) Ltd (1995) 7 NWLR (Pt 405) 26. Where a Court, however, raises the issue suo motu, it must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised. Okebola Vs Molake (1975) 12 SC 61, Kuti Vs Balogun (1978) 1 SC 53, Graham Vs Esumai (1984) 11 SC 123, Bamgboye Vs Olanrewaju (1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).
Where the Court denies the parties the opportunity to address on the issue before deciding same and the issue is not an irrelevant one, but one, the resolution of which has a substantial and direct effect on its final decision, the Court will be held to have compromised the right of the parties to fair hearing and the judgment is liable to be set aside as having occasioned a miscarriage of justice ? Shitta-Bey Vs Federal Public Service Commission supra, Ebba Vs Ogodo (1984) SCNLR 372, Saude Vs Abdullahi supra, Nwokoro Vs Onuma (1990) 3 NWLR (Pt 136) 22, Kraus Thompson Organization Ltd Vs University of Calabar supra, Total Engineering Services Team Inc Vs Chevron Nigeria Ltd supra, Wagbatsoma Vs Federal Republic of Nigeria supra. A read through the judgment, in the instant case, shows that the decision of the lower Court on the issue raised suo motu was the sole ground upon which it granted the claims of the Respondent. The judgment thus occasioned a miscarriage of justice and it is liable to be set aside.
The second issue for resolution in the appeal is thus also resolved in favour of the Appellant.
In conclusion therefore, this Court finds merit in the appeal and it hereby allows same. Both the interlocutory Ruling and the judgment of the National Industrial Court of Nigeria sitting in Jos delivered in Suit No NICN/JOS/17/2014 by Honorable Justice R. H. Gwandu on the 22nd of June, 2015 and 18th of March, 2016 respectively are hereby set aside. The claims of the Respondent on the originating summons filed before the lower Court, having been found to be statute barred, are hereby dismissed. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in draft the lead judgment delivered by my learned brother HABEEB A. O. ABIRU, JCA. I agree with him that the appeal is meritorious and should be allowed.
I also set aside both the Ruling and the judgment of the trial Court in Suit NO: NICN/JOS/17/2014 delivered On 22nd of June 2015 and 18th day of March 2016 respectively.
The claims of the Respondent on the originating Summons filed before the lower Court found to be Statute barred are dismissed.
I abide by the consequential order on cost.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance the lead judgment of my learned brother HABEEB A. O. ABIRU, J.C.A., and I agree with his reasoning and conclusion. I also allow the appeal for the reasons stated therein and abide the order that parties bear their costs.
Appearances:
Isah Shuaibu with him, G. I. Edogbo and P. A. AttahFor Appellant(s)
Augustine AuduFor Respondent(s)
