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GUNNER JOVIAL JEROME -VS- THE NIGERIA ARMY

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON MONDAY 10TH DAY OF DECEMBER 2018

  BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/ABJ/120/2014

BETWEEN:

 

GUNNER JOVIAL JEROME………………………….CLAIMANT

 

AND

 

THE NIGERIA ARMY……………………………DEFENDANT

JUDGMENT

The Claimant commenced the instant action vide Complaint and Statement of Facts filed on 14/05/2014. By an Amended Statement of Facts filed on 05/03/2016, pursuant to order of Court made on 15/11/2016, the Claimant claims against the Defendant the reliefs set out as follows:

  1. A declaration that his trial and subsequent dismissal from the Nigeria Army is unlawful, null, void and of no effect whatsoever.
  2. A declaration that the Plaintiff is still in the employment of the 1st
  3. A declaration that the Plaintiff is entitled to his salaries, other benefits and emoluments right from the time of his dismissal till date.
  4. An Order directing the Defendant to forthwith reinstate the Claimant to the employment/services of the 1st Defendant and pay him his salaries, emoluments and other benefits from the time of the unlawful dismissal till the date of his reinstatement.
  5. An Order for substantial cost.
  6. The facts culminating in this suit, as gathered from the Statement of Facts, in a nutshell, is that the Claimant was as a soldier of the rank of a Gunner (a Private) in the service of the Defendant. While in the service of the Defendant, the Claimant was alleged to have had an illicit relationship with the spouse of another soldier in his official quarters. The Claimant was investigated and he was summarily tried and subsequently dismissed from the Nigeria Army.
  7. The Defendant joined issues with the Claimant. Its contention, by the Statement of Defence filed on 03/02/2016 is essentially that the summary trial and dismissal of the Claimant from the Nigeria Army by the Commanding Officer was proper and in accordance with the Law.

The Claimant did not file a Reply to the Defendant’s Statement of Defence.

  1. At the plenary trial, the Claimant testified in person and called no witness. He adopted his written depositions on Oath. The learned Defendant’s counsel raised objection as to the admissibility of the four documents sought to be tendered in evidence. The issue of the admissibility of these documents shall be dealt with later in the course of this Judgment. The case of the Claimant was closed after being cross examined by the learned Defendant’s counsel.
  2. The Defendant in turn called two witnesses namely, Ssgt Musa Yusuf and Ssgt Kenny Dodo; they are both serving officers of the Nigeria Army. In like manner, they both adopted their written depositions on Oath and further tendered seven sets of documents as exhibits to support the defence. These exhibits are listed as follows:
  3. Convening Orders for Regimental Inquiry by Col. M. S Zubairu (N/8433) FSS MSS psc to investigate the circumstances that led to the Misconduct of 96NA/42/6271 Gnr. Jovial Jerome in the barracks as Exhibit D1.
  4. Report of Regimental Inquiry convened by Col. M.S. Zubairu (N/8433) FSS MSS to investigate the circumstances that led to the misconduct of 96NA/42/6271 Gnr. Jovial Jerome in the Barracks on 25th Feb 07 within the residential area as Exhibit D2.
  5. Review of the Regimental Inquiry convened by Col. M.S. Zubairu (N/8433) FSS MSS to investigate the circumstances that led to the misconduct of 96NA/42/6271 Gnr. Jovial Jerome in the residential area of Minna Barracks on 25 Feb 07 as Exhibit D3.
  6. Investigation Report on alleged case of sexual relation with Service Personnel Spouse and attempt to commit offence (Adultery) as Exhibit D4.
  7. Charge Sheets for the trial of the Claimant for the offences of conduct to the Prejudice of Service Discipline punishable under Section 103 of the Armed Forces Act, Disgraceful Conduct punishable under Section 93 of the Armed Forces Act and Sexual Relation with Service Personnel’s Spouse punishable under Section 79 of the Armed Forces Act as Exhibits D5, D5A and D5B respectively.
  8. Extracts from the Unit’s Minor Offence Book relevant to the summary trial of the Claimant by the Commanding Officer as Exhibit D6.
  9. Part 2 Orders (Sldrs) publishing the summary entries made against the Claimant at his summary trial by the Commanding Officer as Exhibit D7.

The witnesses were also crossed examined by the learned Claimant’s counsel.

  1. Thereafter, parties, through their respective learned counsel filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

In the address filed on 06/08/2018, the Defendant’s learned counsel, Shuaibu Isah, Esq., raised a sole issue as having arisen for determination in this suit, that is:

Whether from the evidence before this Honourable Court, the summary trial and consequential dismissal of the Claimant from the Nigeria Army by the Defendant on 30th March 2007 was in accordance with the relevant provisions of the applicable law?

In the address filed on 17/10/2017, by E. S. Obidigbo Esq., of counsel for the Claimant, the sole issue he raised as having arisen for determination in this suit is similar to that of the learned Defendant’s counsel that is:

Whether from the totality of evidence before the Court, the summary trial and consequential dismissal of the Claimant from the Nigeria Army was in accordance with the relevant provisions of the applicable law?

  1. On the basis of my appraisal of the state of the pleadings and the totality of the admissible evidence led at the trial, it is my opinion that the issues as formulated by the respective learned counsel adequately capture the facts of this case and I shall adopt same.

The Defendant’s Reply to Claimant’s Written Address was filed on 02/10/2018.

  1. In proceeding to determine these issues, I have taken due cognizance and benefits of the totality of the written and oral arguments canvassed by learned counsel on both sides to support the issues they have respectively formulated; and as I proceed with the Judgment, I shall endeavour to make specific reference to their submissions as I deem needful.
  2. As a preliminary point, it is pertinent to determine the issue raised by the Defendant’s learned counsel on the admissibility of the documents sought to be tendered by the Claimant. The ground of the objection is that the said documents did not emanate from proper custody and duly certified as such by the custodians as required by law as the documents were certified at the registry of the Federal High Court, Minna and not by the Defendant.

The said documents tendered by the Claimant’s counsel are:

(a) A copy of the Claimant’s pay slip,

(b) A copy of the convening orders for regimental inquiry of the Claimant,

(c) A copy of the application for review of summary trial and dismissal of the Claimant from the Nigeria Army and

(d) Two charge sheets.

Upon raising the objection, the Court granted the learned Defendant’s counsel leave to address the Court on the issue of admissibility in its final written address and merely marked the documents for the purpose of the address as C1A, C1B, C1C, C2A and C2B respectively.

  1. As correctly pointed out by the Claimant’s learned counsel, and as also properly borne by evidence led on the record, the convening orders for regimental inquiry of the Claimant and the charge sheets were equally tendered by the Defendant and they were admitted as Exhibits D1, D5A, D5B and D5C respectively.
  2. Now, the law is recondite on the admissibility of documents. In Iyagba V. Sekibo & Ors 2008 LPELR 4346, the questions that must be asked and answered on the admissibility of documents were expounded as follows:
  3. Is the document pleaded?
  4. Is it relevant to the inquiry being tried by the Court?
  5. Is it admissible in law?

And now to answer these questions, needless to say, recourse shall be made to the processes filed by the parties to this action but before I delve into that, let me quickly say that the criteria for admissibility of document as enunciated above do not operate disjunctively but conjunctively. In other words, for a document to be admissible in evidence, it must be pleaded, it must be relevant and should be admissible in law.

  1. On the first question, as to whether the documents are pleaded, the Claimant in paragraphs 4, 9, 10 and 17 of his Statement of Facts averred thus:
  2. “The Plaintiff’s ply part enters are: PER/REGT.No96NA/42/6271;PAYPOINT-08-NG-001; and DIV/BDE/UNIT-01-33-022, while his unit is 313 ADAR, and in Minna. The Plaintiff pleads his pay slip for the month of Sept 2000 and shall rely on same during trial.
  3. The Plaintiff state that this incidence led to the “convening of a “regimental inquiry” to investigate the circumstances that led to the “misconduct in the barracks”. The Plaintiff pleads and shall during trial, rely on the document, Ref No. 313/R/15/A, dated 27/02/07, which contains the composition of the Board of Inquiry and terms of references and the Defendant is hereby given notice to produce the original in the course of trial.
  4. The Plaintiff avers that the Board of Inquiry charged him with three offences, viz (i) conduct to the prejudice of service discipline, (ii) disgraceful conduct and (iii) sexual relation with service personnel’s spouse, the offences were said to be punishable under SS. 103, 93 and 79 of the Armed Forces Act (AFA) Cap A20, LFN respectively. The Plaintiff pleads the charge sheets are accordingly pleaded and gives the Defendant notice to produce the original as the Plaintiff shall rely on same in the course of trial.
  5. On 8th March, 2010, the 1st Defendant wrote the Plaintiff through its legal services dept that his dismissal from the Nigeria Army “has been upheld by the Army Headquarters, and that his case is finally closed”. The Plaintiff shall rely on a copy of this letter, IDiV/LS/G1/300/74.
  6. In the light of the foregoing, the 1st question posed a while ago must be answered in the affirmative. The above reproduced paragraphs of the averments of the parties to this action have not left any one in doubt that the said documents have passed the 1st criterion as they were pleaded thus the question is answered in the affirmative.
  7. The next question for our consideration is whether the documents are relevant. I am of the strong view that documents are not only relevant, but they are the fulcrum upon which the just determination of the instant case rests. As rightly submitted by the learned Claimant’s counsel, some of these documents was equally pleaded by the Defendant. There is no doubt that the Claimant was dismissed from the Nigeria Army and these documents are relevant for the just determination of this case.
  8. The 3rd question as to whether the documents are admissible in law, this question like the previous two must be answered in the affirmative. They are legally admissible documents. The said documents needless to say are public documents, as such, the Claimant painstakingly certified all the documents and what were tendered were Certified True Copies of the said document. The Defendant seems to challenge the admissibility of the documents on the ground that they were not procured from proper custody. There is no complaint that the stated documents are not relevant. The Defendant needs to be educated that once a document is relevant, it can be admitted even if it did not emanate from proper custody. Its production from proper custody goes to weight to be attached to the piece of evidence. The cases of Ogbunyiya V Okudu 1979 6-9 SC 32; Torti V. Ukpabi (1984) 1 SC 370; Anozie V Obichere & Ors (2005) LPELR 7478 is clearly in point. Therefore, documents marked C1A, C1B, C1C, C2A and C2B are hereby admitted as Exhibits C1A, C1B, C1C, C2A and C2B respectively.
  9. Having dealt with the issue of admissibility of the documents I shall now deal with the substance of the case.

As it is well settled, the general principle is that where the conditions for appointment or determination of contract of service are governed by the pre-conditions of an enabling statute, so that a valid appointment or determination is predicated on satisfying such statutory provisions, such contract is one with statutory flavour. The contract is determinable not by the parties, but only by statutory pre-conditions governing its determination See Fakuade V. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47; Idoniboye-Obu V. N.N.P.C. (2003) 1 SCNJ 87 at 111.

The relevant testimony of the CW1, is to the effect that he was gunner, that is a private solder in the Nigeria Army with No. 96NA/42/6271, attached to the 313 Air Defence Artillery Regiment, Minna, Niger State. He joined the Defendant in June 1996 and had his training as a 42nd regular intake recruit at Army Depot Zaria and he passed out on 09/09/1996. The Claimant further testified that he had training/courses while he was in the employment of the Defendant which was sponsored by the Defendant. CW1 also testified that his ply part enters are PER/REGT.No96NA/42/6271; PAYPOINT-08-NG-001; and DIV/BDE/UNIT-01-33-022, while his unit is 313 ADAR, and in Minna. The Claimant’s pay slip was admitted in evidence as Exhibit C1A.

CW1 further testified that on 25/02/2007, he ran into a woman one Magdalene Abdulkadir at a beer parlor at the barracks where they both agreed to spend some time together at the Claimant’s room also at the barracks.

CW1 testified that soon after Magdalene entered his room, a fellow soldier came into the room and alleged that the said Magdalene was the wife of Sgt. Abdulkadir Umar, a fellow soldier. He further testified that the incident led to the convening of a regiment inquiry to investigate the circumstances that led to the Claimant’s misconduct in the barracks. CW1 also testified that he was charged with three offences and was subsequently dismissed from the Army. The letter dated 08/03/2010 by the Defendant in response to the Claimant’s petition is admitted in evidence as Exhibit C1C

The Claimant has alleged that his dismissal was shrouded with a lot of irregularities and that it was not done in accordance with the operative Statute.

  1. As further gathered from the testimony of CW1, his grouse against the Defendant is that he was not given fair trial and that all the three offences with which he was charged can only be tried by a Court Martial and not by any organ of the Defendant. The CW1 further alleged that the Battalion Commander or Commanding Officer or its equivalent has no power to dismiss him on the three counts.
  2. Under cross-examination by the Defendant’s learned counsel, the Claimant testified that he appeared before three different panels which had different officers as head of panels; one Illaya Yusuf was in the first panel, the second was headed by Sgt Dodo whilst the third was headed by the Commanding Officer. He testified that he was dismissed after the third panel.
  3. The Defendant, on the other hand, disputed the claim of the Claimant. The testimony of the DW1, the Ssgt Musa Yusuf is to the effect that the Claimant was first investigated by the Regimental Inquiry and Military Police before the summary proceedings. DW1 disputed the fact that the Claimant was charged or tried for the offences by the Regimental Inquiry or Military Police. He tendered as Exhibits D1, D2 and D3; the certified true copies of Convening Order for the Regimental Inquiry, Report of the Regimental Inquiry and Review of the Regimental Inquiry. The DW1 further testified that the Claimant was summarily tried at the first instance by the Battery Commander (Officer Commanding) for the offences of: (i) Conduct to the prejudice of Service Discipline (ii) Disgraceful Conduct and (iii) Sexual Relation with Service Personnel’s Spouse. DW1 also testified that the three counts were referred by the Battery Commander to the Commanding Officer who summarily tried the Claimant for the three offences. The certified true copies of the Charge Sheets, Extracts from the Unit Minor offences book and the Order publishing the summary entries were tendered in evidence as Exhibits D5, D5A, D5B, D6 and D7 respectively.

The further evidence of the Defendant by DW2, one Staff Sgt Kenny Dodo is that he investigated a case reported on 25/02/2007 by one Bdr Adekunle Akinleye against the Claimant. He testified that the Claimant confessed that he had sexual relation with one Mrs. Magdalene Abdulkadir on two occasions. DW2 further testified that he submitted his investigation report to the appropriate superior authority on 26/03/2007. The Investigation Report was tendered in evidence as Exhibit D4

  1. From the evidence gathered from the witnesses, there is no dispute between the parties that the Claimant was employed by the Defendant. There is also no dispute on the fact that the Defendant is an establishment of statute that is, Section 1 of the Armed Forces Act Cap A20, Laws of the Federation of Nigeria 1990 (as amended) (AFA). This Act is applicable to the Claimant by virtue of Section 270 AFA.
  2. It is trite that where the terms and conditions of contract of employment are specifically provided for by statute, it is said to be an employment with statutory flavour or contract protected by statute. See Oloruntoba-Oju V. Abdulraheem (2009) ALL FWLR (Pt. 497) 1 at 42; Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599. Therefore, it is clear that the contract between the Claimant and the Defendant enjoy statutory flavour.
  3. It is also trite and as rightly submitted by the learned Defendant’s counsel, that an employee who alleges wrongful termination of employment or wrongful dismissal has the onus to prove his claim. See Morohunfolu V Kwara State College of Technology 1990 4 NWLR Pt 145 pg 506

Learned counsel for the Defendant had submitted that the Claimant’s claim is based on the erroneous belief, which is apparent from his depositions that he was investigated, charged, tried, convicted and dismissed by a Regimental Inquiry or Board of Inquiry. Learned Defendant’s counsel further submitted that contrary to the Claimant’s claim the Claimant was not charged, tried, and dismissed from the Nigeria Army by the Regimental Inquiry but that the Regimental Inquiry and Military Police conducted the preliminary investigation after which he was summarily tried. Learned counsel for the Defendant urged the Court to hold that the entirety of the Claimant’s claim ought to fail on the Claimant’s erroneous belief.

  1. Parties are ad idem on the fact that the Claimant was charged and summarily tried with three offences; that he was discharged on one offence but found guilty on the two other offences and that he was consequently dismissed by the Commanding Officer.

I had earlier reproduced the relevant paragraphs of the Claimant’s depositions on the issue of being investigated, charged, tried, convicted and dismissed. I reckon that the resolution of the dispute between the parties in this suit devolves substantially on the documentary evidence tendered at the trial and the relevant sections of the Armed Forces Act (supra) on discipline of officers of the Defendant.

  1. I consider it pertinent at this juncture to first address the issue of fair hearing to which the learned Claimant’s counsel dedicated his argument in his written address.

Learned Claimant’s counsel had submitted that the Claimant was not given fair hearing by the Regimental Inquiry set up by the Defendant to investigate the allegations made against the Claimant. The Claimant’s counsel argued that the investigation panel breached the Claimant’s right to fair hearing and the Claimant deposed in Paragraph 15 of his Witness Statement on oath the various instances which the Defendant breached the his right. CW1 tendered in evidence Exhibit C1B and C1C.

  1. DW1 and DW2 in defence of this allegation testified that the Defendant set up a Regimental Inquiry and the Military Police to investigate the allegations before he was summarily tried. DW1 tendered in evidence Exhibit D1 (which is Claimant’s Exhibit C1C) – the convening orders stating the composition, the witnesses and terms of reference of the Regimental Inquiry. The defence witnesses further testified that in the course of the proceedings the Claimant was informed of the allegation and he was given an opportunity to defend himself. Exhibit D2 – the report of the Regimental Inquiry showing the statement of witnesses, the record at the Inquiry and the recommendation made was tendered in evidence to prove that the Claimant was informed of the allegation and that he was afforded the opportunity to defend himself. Furthermore, a cursory look at Exhibits D2, D4, D5, D5A, D5B, D6 and D7 reveal the following:
  2. That the Claimant and five other witnesses testified before the Regimental Inquiry;
  3. That the Claimant confessed that he committed the offence and pleaded for forgiveness;

3 That the woman with whom the Claimant was alleged to have committed the offence had absconded from her house after the incident and that all efforts to locate her to appear before the Inquiry proved abortive;

  1. That the Regimental Inquiry made its recommendation and submitted its report to the appropriate authority;
  2. That the case was also investigated by the Military Police;
  3. That the Commanding Officer summarily tried the Claimant;
  4. That there are records of the entire investigation and proceedings.
  5. It is trite that in employment cases, fair hearing does not require more than disclosing the allegation to the employee and giving the employee an opportunity to answer to the allegation. Once a person likely to be affected by a disciplinary proceeding is given adequate notice of the allegation against him and he is given an opportunity to enable him make a representation in his own defence, the rule of natural justice and fair hearing, would have been satisfied.

See NEPA V. Enyong (2003) FWLR (Pt. 175) 452 at 472, where it was held as follows-

“I think it is on the basis of this emphasis of fair hearing that the Supreme Court decision in the recent case of Osakwe V. Nigeria Paper Mills Ltd (1998) 10 NWLR (Pt. 568) 1, can be explained. There it was held that where an employee is confronted with an allegation of crime by the employer and the former is given an opportunity of explaining himself, then he cannot later turn around to say he was not given a fair hearing”

The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of being heard.

  1. Based on the foregoing therefore, I find nothing to fault the investigation by the Regimental Inquiry or the Investigation Panel. It is my view therefore, that the Claimant was afforded fair hearing during the investigation by the panel. And I so hold.
  2. The Claimant had also contended that all the three offences he was charged with can only be tried by court-martial and not by any organ of the Defendant and that the Commanding Officer has no power to award the punishment of dismissal from the Nigerian Army as it relates to the two offences to which he was convicted and sentenced.

 

  1. I agree with the learned counsel for the Defendant that by the provisions of Sections 123 and 124 (2), (5) and (6) of the Armed Forces Act (supra), a Commanding Officer of a battalion (such as the Claimant’s unit) has the powers to summarily try a service personnel alleged to have committed any offence except offences under Section 124 (6) (a) of the AFA.
  2. Now, the question is whether the Claimant was lawfully dismissed and whether his claims thereon for his reinstatement and unpaid salaries can be granted by this Honourable Court?

DW1 testified that the Claimant was first investigated by a Regimental Inquiry and Military Police before he was summarily tried on 30/03/2017. He further testified that the summary trial was concluded on the same day and that the Commanding Officer found the Claimant not guilty of the offence of conduct to the prejudice of service discipline. The Claimant was however found guilty with regard to the other two counts and the Commanding Officer awarded the sentence of “dismissed regiment” or dismissal from Army on each of the two charges. The charge sheets – Exhibits D5, D5A and D5B tendered by DW1 stated the findings of the summary trial and the awards were referred to the Commanding Officer.

  1. The provisions of the Armed Forces Act (supra) relevant to this instant contention of the Claimant are the sections upon which the Claimant was summarily tried and for which he was convicted and dismissed. The offences are disgraceful conduct punishable under Sections 93 of AFA and sexual relation with service personnel’s spouse under Section 79 of AFA.

Section 93 Armed Forces Act (supra) provides:

“A person subject to service law under this Act who is guilty of a disgraceful conduct of a cruel indecent or unnatural kind is liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

Section 79 Armed Forces Act (supra) provides:

“A person subject to service law under this Act who has carnal knowledge of the spouse of another person subject to service law under this Act is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years, so however that no person shall be convicted under this section upon the uncorroborated evidence of the witness.”

  1. Learned Defendant counsel submitted that the Commanding Officer can summarily try the offence under Section 79 AFA hence the Commanding Officer acted within his powers with regard this offence. He however conceded that the Commanding Officer acted ultra vires his powers by proceeding with the summary trial and dismissal of the Claimant for the offence under Section 93 which is listed in Section 124 (6) (a).

Now, as rightly submitted by learned counsel on contending sides, by Section 124 (6) (a) AFA, a Commanding Officer shall not summarily deal with offences for offences that the sections were listed under paragraph (a) of Section 124 (6); such offences listed includes inter-alia, the offence under Section 93 AFA.

  1. On the issue of dismissal of the Claimant, learned counsel on both sides had made heavy weather on the interpretation of Section 116 of AFA as it relates to the punishment of dismissal that was awarded by the Commanding Officer against the Claimant for the offence under Section 79 AFA. Whilst the learned counsel for the Defendant argued that by Section 116 (1)(b)(i) AFA, the Commanding Officer (the Battalion Commander) has the power to summarily try an accused soldier of the Claimant’s rank (private) and award the punishment of “dismissed regimental”, the learned Claimant’s counsel however submitted that Section 116(1)(b)(i) AFA only empower the Commanding Officer to “dismiss regiment to the rank of corporal, able rate or below” and that punishment under the section does not include dismissal from the Nigerian Army.

Learned Claimant counsel further submitted that by applying the principles of construction and interpretation of a statute, the words used in the Section 116(1)(b)(i) AFA must be given its ordinary grammatical meaning to give the proper and correct interpretation of the intendments of the legislature.

  1. In view of the relevance of Section 116 (1) (b) (i) AFA, I take liberty to reproduce the salient portions of the section as follows:

Section 116

“(1) Subject to the provisions of this section, a warrant or petty officer, non-commissioned officer, soldier, rating or aircraftman who is charged with an offence which may be summarily tried under Part XIV of this Act, may be summarily tried and punished to the extent permitted and in accordance with the following provisions of this section by the officer in command of the unit, ship or establishment to which that person belongs either at the time of the commission of the offence or at the time of the trial of the offence, that is-

(b) “Where the accused is below the rank of warrant officer class one or chief petty officer, the battalion commander or his equivalent may summarily deal with the chare by either dismissing the case or awarding any of the following punishments, that is-

(i) dismissed regiment to the rank of corporal, able rate or below;

(ii) imprisonment with hard labour up to twenty-eight working days in the unit guardroom provided that the person so charged is of the rank of corporal, able rate or below;

(iii) reduction in rank not below one step for sergeants, leading hands and below;

(iv) forfeiture of pay not exceeding seven days;

(v) where the offence has occasioned any expenses, loss or damage, make good the loss by stoppages not exceeding N500;

(vi) confinement to barracks not exceeding twenty-eight days;

(vii) extra duties not exceeding seven days;

(viii) reprimand or severe punishment

(ix) admonition;”

  1. It is settled law that where the language used is clear and unambiguous, the words must be given their natural and ordinary meaning. However, where the literal interpretation would lead to absurdity, it is the duty of the court to consider the enactment as a whole with a view to discerning the intention of the legislature and determining whether the language of the enactment is capable of any other fair interpretation. Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter, See: Bronik Motors Ltd V. Wema Bank 1983 All NLR 272; Dantosho V. Muhammed (2003) FWLR (150) 1717 Ojukwu V. Obasanjo (2004) 12 NWLR (886) 169; Friday & Ors V. The Governor of Ondo State & Anor 2012 LPELR 7886
  2. Now, the phrase in contention is “dismissed regiment”. Black’s Law Dictionary, 9th edition, page 10 defines “absurdity“as:

“The state or quality of being grossly unreasonable, especially an interpretation that would lead to an unconscionable result, especially, one that the parties or (especially for a statute) the drafters could not have intended and probably never considered.” 

  1. I shall proceed to apply the above principle to interpret the phrase “dismissed regiment” in the Section 116(1) (b). To do this, I shall consider Section 116 (2) of the Armed Forces Act (supra) relevant to interpret the phrase.

I had earlier reproduced Section 116(1) (b) (i) – (ix) of the AFA.

Section 116 (2) AFA provides:

“For the purposes of subsection (1) of this section, a punishment specified in any sub-paragraph of the scale shall be treated as less than the punishment specified in the preceding sub-paragraph and greater than those specified in the succeeding sub-paragraph of the scale.”

  1. It is my considered view that the clause “dismissed regiment to the rank of corporal, able rate or below” of Section 116 (1) (b) (i) should be construed with reference to the context of Section 116 (2) of the Act, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter which in the instant case is summary trial and punishment of the Claimant.

My understanding of the combined reading of these sections when applied together with the Fourth Schedule of the AFA is that the punishment of “imprisonment with hard labour” shall be treated as less than the punishment of “dismissed regiment” in the preceding sub-paragraph.

If, as contended by learned counsel for the Claimant, the punishment to be awarded by the Commanding Officer to the Claimant means demotion or reduction in rank, what would be the essence of the punishment of reduction in rank as stated in paragraph (iii) of Section 116 (1) (b)? The legislature could not have intended same punishment of reduction in the consecutive paragraphs. Again, what would be the essence of Section 116 (2) analyzing the grades or severity of each of the punishment and distinguishing each of the punishments? It is equally important to note that the punishment of soldiers, ratings and aircraftmen by court-martial was provided in Section 119 AFA (supra).  Here again, the punishment to be awarded to the accused is stated in order of the grades or severity with the greatest punishment preceding,

  1. Having regard to the fact that punishment to be awarded is stated in order of the grades or severity with the greatest punishment preceding, it stands to reason that the intendment of the drafters of the Armed Forces Act (supra) is that the punishment of dismissal from regiment is to be awarded to the rank of corporal, able rate and below. I therefore agree with the learned Defendant counsel that the clause “dismissed regiment to the rank of corporal, able rate and below” in Section 116(1) (b) (i) is dismissal from Nigeria Army. And I so hold.
  2. The learned Claimant further contended that the Defendant having admitted that the Commanding Officer acted ultra vires with regard to the charge of disgraceful conduct under Section 93 AFA (supra), the Claimant’s summary trial is invalid.
  3. With due respect to the learned Claimant’s counsel, this submission is misconceived. I do not agree with the learned Claimant’s counsel that the punishment of dismissal awarded to the Claimant for the offence under Section 93 AFA would invalidate the summary trial of the Claimant for the offence under Section 79. The two offences as reflected in Exhibits D5A and D5B are separate charges; furthermore, the award of the punishment of dismissal for the offence under Section 93 in my view cannot occasion miscarriage of justice since the same punishment of dismissal was awarded by the Commanding Officer who has power to summarily try the Claimant for the offence under Section 79. And I so hold.
  4. In the final analysis, what the Court had demonstrated, through the evidence led on record and the totality of the circumstances of this case is that the termination of the Claimant by the Commanding Officer of the Defendant is valid.

The final result therefore is that the case of the Claimant must and hereby fails in its entirety. It is hereby accordingly dismissed.

  1. Parties are to bear their respective costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

10/12/2018

 

Legal representation:

E.S.Obidigbo Esq. with I.M. Ani Esq. for the Claimant

Shuaibu Isah Esq. for the Defendant

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