MAJOR GENERAL OVO ADHEKEGBA v. THE HONOURABLE MINISTER OF DEFENCE & ORS. (2013)

MAJOR GENERAL OVO ADHEKEGBA v. THE HONOURABLE MINISTER OF DEFENCE & ORS.

(2013)LCN/5932(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of February, 2013

CA/A/216/2010

RATIO

THE POSITION OF THE LAW ON NON-COMPLIANCE WITH THE DUE PROCESS OF LAW

It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void. The position of the law is clearly laid down in the case of SAUDE v. ABDULIAHI (1989) 4 NWLR [pt.116] 387 at 422 where the Supreme Court held that- “There is non-compliance with due process of law when the procedural requirements have not been complied with or the pre-conditions for the exercise of jurisdiction have not been complied with. In such a circumstance the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seized with jurisdiction in respect of the action.” “It is settled law that where a statute provides for a particular method of preparing a duty regulated by the statute that method and no other must have to be adopted as followed.” See FBN PLC V. NDOMA-EGBA (2006) ALL FWLR [Pt.307] 1012 at 1038. Per. TINUADE AKOMOLAFE-WILSON, J.C.A

THE PROCEDURES FOR SEEKING REDRESS IN THE ARMED FORCES

THE ATTITUDE OF THE COURT WHERE A PROCEDURE IS PROVIDED IN A STATUTE

It is settled law that where a procedure is provided in a statute, any person aggrieved must exhaust the procedure before proceeding for redress in a court of law, for his action to be competent – see ADESOLA v. ABIDOYE (1999) 14 NWIR [pt.637] 28 SC at page 59 paras F – G, per Karibi-Whyte JSC, 60. Paragraph F, per Ogundare JSC; 65 – 66 paras H – A, per Iguh JSC; ADIGUN v. OSAKA (2003) 5 NWLR [pt.812] 95 at 121, paras D – G, 124, paras D – G, 729 paras A – G. Conversely, if the procedure for redress is followed, the party cannot be denied access to court. Having regard to the procedure followed by the Appellant in forwarding his petition through the Chief of Defence Staff to the President, he duly exhausted the administrative remedies available to him as requested by section 178 (3) of the Armed Forces Act “before embarking on any other action” which is the institution of this suit. I am therefore in full agreement with the learned counsel for the Appellant that the learned trial Judge erred in law when he held that the court had no jurisdiction to entertain this suit by reason of failure to satisfy the condition precedent to the institution of this suit. The Appellant should not be denied access to court. Per. TINUADE AKOMOLAFE-WILSON, J.C.A.

JURISDICTION: IN DETERMINING WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN ANY CLAIM

It is trite law that jurisdiction of the court cannot easily be washed away hence courts guard their jurisdiction jealously as the right of access to court is constitutional. In considering whether or not a court has jurisdiction to entertain any claim, the Supreme Court has long held that while a person’s right of access to court may be taken away or restricted by a statute, the language of any such statute will be watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. A provision in a statute ousting the jurisdiction of the court must therefore be construed strictly – BARCLAYS BANK OF NIGERIA LTD v. CENTRAL BANK OF NIGERIA (1976) 6 SC 115; INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1025] 423. In the cited case of NAAC v. ECONET WIREIESS LTD (2006) 37 WRN 120 AT 15S – 159, Justice Odili JCA, as he then was stated thus –
“In the interpretation of statute which restricts a citizen’s right if there should be any doubt, gap, duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or deprivation of his right. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction. If there is any doubt as to whether the person to be penalized or to suffer has of a right comes fairly and squarely within the plain words of the enactment, should have the benefit of that doubt.” Per. TINUADE AKOMOLAFE-WILSON, J.C.A.

JUSTICES:

HUSSIEN MUKHTAR Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

MAJOR GENERAL OVO ADHEKEGBA – Appellant(s)

AND

1. THE HONOURABLE MINISTER OF DEFENCE
2. NIGERIAN ARMY COUNCIL
3. THE PERMANENT SECRETARY, MINISTRY OF DEFENCE – Respondent(s)

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the decision of the Federal High Court Abuja before Hon. Justice M.G. Umar, delivered on 10th March, 2010.
By an amended originating summons dated 28th May, 2008, the Plaintiff, now Appellant before this Court sought for the determination of the following questions-
“1. Whether the Defendants’ conclusion at the meeting of February 11, 2008, concerning the commission of the Plaintiff which resulted in the decision contained in the letter of February 11, 2008 and letter dated 14th March, 2008 was not inconsistent with the Plaintiffs right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act Cap 20 Law of the Federation of Nigeria 2004.
2. Whether the composition of the Army Council which met on February 11, 2008, deliberated and resolved that the Plaintiff resign his commission on Disciplinary grounds was not in violation of the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act, Cap A20, Laws of the Federation.
3. Whether the Army Council under Section 9 of the Armed Forces Act Cap. 20 Laws of the Federation of Nigeria 2004 and the Constitution of the Federal Republic of Nigeria, 1999 has the power to remove compulsorily, retire and terminate the commission of the Plaintiff or any officer of the Nigerian Army.”
The Appellant sought for the following reliefs: –
1. A declaration that the Nigerian Army council as presently constituted is unconstitutional, illegal and cannot remove, retire or terminate the commission of the Plaintiff under the Armed Forces Act Cap A20 Laws of the Federation. 2004.
2. A declaration that the findings and decisions of the Nigerian Army Council at its meeting of February 11, 2008, to the effect that the Plaintiffs conduct over the time has been prejudicial to military discipline, therefore, should resign his commission or be compulsorily retired, is in violation of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is void and without any legal effect.
3. A declaration that the purported removal, retirement and termination of the commission of the Plaintiff by letter dated 14 March, 2008 when litigation is pending is not in accordance with the Armed Forces Act, Cap A20, laws of the Federation, 2004 and the Constitution of the Federal Republic of Nigeria,1999.
4. A declaration that full compliance with Section 18 of the Armed forces Act with respect to the appointment of Chief or Army Staff (4th Defendant) is mandatory.
5. A declaration that the 4th Respondent cannot exercise the powers and authority of the office of the Chief of Army staff until the National Assembly confirms his appointment to the said office.
6. An order setting aside, nullifying and putting away the decision of the Nigerian Army Council made on February 11, 2008, contained in a letter reference number NA/226/MS dated 11th February 2008 and being inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act.
7. An order of injunction restraining the 4th Defendant from continuing to perform the function of the office of the Chief of Army Staff, occupy the office, participate in the function and exercising the powers of the office, and from participating in the functions and exercising duties as a member of Nigerian Arm Council, from parading himself, presenting himself, introducing himself to any person(s) or authorities until the mandatory provisions of Section 18 of the Armed Forces Act are fully complied with.
8. A declaration that no commissioned officer of the Nigerian Army can be forcefully removed or retired by reason of “service no longer required” as the reason and therefore is inconsistent with the Armed Forces Act Cap 20 Laws of Federation of Nigeria, 2004.
9. An order setting aside, nullifying and render ineffective letter reference NA/226/MS of 14th March, 2008 being ultra vires the Respondents, illegal, null and void.
See pages 103 – 106 of the Record of Appeal.
The action was commenced against the Respondents in the following order:-
1. The Nigerian Army Council
2. The Honourable Minister for Defence (Federal Republic of Nigeria)
3. The Chief of Defence of Staff (General O.A. Azazi)
4. The Permanent Secretary, Ministry of Defence
5. The Chief of Staff (Lt Gen. C. M. Yusuf)
The Appellant was a Major-General in the Nigerian Army. On 11th February 2008, the Army Council met whereby a member raised an allegation of commission of criminal offences bordering on disciplinarian grounds against him. The Council without hearing him wrote a letter Exhibit ‘OVO1 dated 11th February 2008, to withdraw his commission or be compulsorily retired not later than 10th March 2008 otherwise the Council may compulsorily retire him. He contended that the Council was not properly constituted as the 4th Respondent had not been confirmed by the National Assembly as required by law.
The 1st, 2nd and 5th Defendants did not file any counter affidavit to oppose the depositions in the affidavit in support of the originating summons. The 3rd and 4th Defendants challenged the competence of the Plaintiff’s case on the ground that the condition precedent enshrined in Section 178(1) of the Armed Forces Act was not complied with before the commencement of the suit in court. They maintained, though without conceding that the 4th Defendant was not a valid member, that the Army Council was well constituted with a quorum to take valid and enforceable decisions as taken in the letter of 11th February 2008. The 1st, 2nd and 5th Respondents on point of law also supported the contentions of the 3rd and 4th Respondents.
On 10th March, 2010, the lower court dismissed the Appellants case on the ground that the Appellant did not satisfy the condition precedent under the Armed Forces Act before the commencement of his suit.
Being dissatisfied with the decision of the lower court, the Appellant filed two separate Notices of Appeal, on 21st May 2010 and 7th June 2010 respectively. The first one filed on 21st May, 2010 was abandoned leaving the one filed on 7th May 2010 as the extant Notice of Appeal. The Record of Appeal was duly transmitted to this Court on 3rd June 2010. The Appellant’s Brief, settled by Chief (Mrs.) V.O. Awomolo was filed on 7th June 2010. The Respondent’s brief was filed, by Muhammad Danjuma Alhassan, Chief Legal Officer, Ministry of Defence, Abuja on 30th of August 2010. On 14th September 2010, the Appellant filed a Reply to the Respondent’s Brief of Argument.
At the hearing of this appeal, Chief A. S. Awomolo (SAN) appeared for the Appellant. While adopting the Appellant’s Brief of Argument, the learned senior counsel mentioned that the Respondents’ Brief of Argument was filed out of time. There was no representation for the Respondents even though records of the court showed that the Respondents were duly served with hearing notice on 14th November 2012. Nevertheless, the Respondent’s Brief was deemed adopted and argued.
The Records in the court registry show that on 14th June 2010, one Nwanze Ebuka, Esq., from the Chambers of the Appellant’s counsel undertook to serve the Respondent with the Appellant’s Brief of Argument. However, there is no proof of service to show when it was served. Ordinarily, when a brief of argument has been filed out of time, the consequence is that such a process must be deemed not to have been properly filed. It follows that every submission based on such a process must be discountenanced. – UBN LTD v. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR [pt.421] 558 at 576 paragraphs E – F. However, since there is no concrete evidence to prove that the Respondents’ Brief was filed out of time, I will consider it as properly filed and consider the issues adumbrated therein.
Two issues were distilled from the grounds of appeal by the Appellant for determination:-
1. Whether the appellant satisfied the condition precedent to the filing of the suit under the Armed Forces Act and Harmonized Terms and Conditions of service for Nigerian Armed Forces Officers 2007.
2. Whether the learned trial Judge having found that the composition of the Army Council that demanded that Appellants resignation was unconstitutional, null and void; it was still necessary to consider the conditions requiring appeal to the President, Commander-in-Chief who statutorily is the Chairman of the Armed Forces Council.
The Respondents also formulated two issues for determination –
(i) Whether the condition precedent as enshrined in Section 178(1) of the Armed Forces Act was complied with by the Appellant/Plaintiff when he commenced the action in the lower court.
(ii) Whether the absence or otherwise of the Chief of Army Staff (4th Respondent in the lower court) affected the quorum of the Army Council to take a valid decision recognized by law.
The issues adumbrated by the Appellant are more relevant to the live issues having regard to the grounds of appeal. I will adopt them but couch issue one separately so as to accommodate the points raised by both the Appellants and Respondents in their briefs of arguments. With regard to the Respondent’s issue No 2 as couched, it appears it is not completely borne out from the judgment of the court. I will come to it later in the judgment, Issues for determination as distilled from the grounds of appeal therefore are –
(1) Whether the Appellant satisfied the condition precedent prescribed by law to the commencement of this action.
(2) Whether the learned trial Judge having found that the composition of the Army Council that demanded that Appellants resignation was unconstitutional, null and void; it was still necessary to consider the conditions requiring appeal to the President, Commander-in-Chief who statutorily is the Chairman of the Armed Forces Council.
On issue one, it was argued for the appellant that by his complaint to the President, who was the Chairman of the armed Forces Council, through the Chief of Defence Staff, also a member of the armed Forces Council the Appellant had satisfied the requirement of Section 178 of the Armed Forces Act, 2007. Learned counsel submitted that the conclusion of the learned trial Judge at page 377 lines 20 – 22 where he held that the condition precedent before the institution of this suit had not been followed is erroneous, because the Armed Forces Act did not prescribe any other process other than what the Appellant did. He expatiated that it was not disputed that the Appellant was an officer under the command of the Chief of Defence Staff and the complaint against his superior authority being the, Army Council, was channeled through the Chief of Defence Staff, who was his commander to the President, and thus substantially complied with the Provisions of Section 178 (1-) of the Armed Forces Act – (pages 17 – 19 of the Record of Appeal).
Learned counsel noted that the Nigerian Army Council in their letters dated 11th February 2008 and 14th March 2008, allegedly exercised its powers pursuant to the provisions of the Harmonized Terms and Conditions of service for the Nigerian Army Forces Officers (2007) and that this Regulation or Law was made under the Armed Forces Act and was being in force under Section 315 of the Constitution of the Federal Republic of Nigeria 1999. He argued that the Appellant’s letter dated 18th February 2008 complied with the procedure for a redress and that the Appellant is entitled to the supposition that he complied with the requirement of law. He relied on NWOSU v. S.E.B.A. (2004) WRN 94 at 138 – 9. Counsel further submitted that if the trial Judge had adverted his mind to these provisions of the conditions and terms of service, he would not have held that the Appellant acted under a wrong procedure. It is counsel’s contention that the right and remedy by Terms and Conditions of service did not make the decision of the Commander-in-chief final hence the Appellant has the constitutional right of access to court; which should be strictly construed in favour of the Appellant. – NAAC v. ECONET WIRELESS LTD (2006) 37 WRN 120 at 158 – 159.
On Issue No.2. learned counsel submitted that having regard to the uncontroverted facts before the court, the learned trial Judge found that the composition of the Army Council was unconstitutional, null and void, because the appointment of the 4th Defendant, the Chief of Army Staff had not been ratified by National Assembly. Having so found, he argued there was therefore no basis for asking that the Appellant satisfied any condition before instituting the civil suit to challenge the void decision of the Army council as nothing can be placed upon a void decision.
Finally, he urged the court to allow the appeal, set aside the judgment of the lower court and hold that the Appellant complied with Section 178 (1) of the Army Forces Act and regulations made therein.
The Respondents on their part maintain that the Appellant did not comply with the procedure enshrined in Section 178 (1) of the Armed Forces Act before submitting his appeal to the President and Commander of the Armed Forces and noted that it was his failure to first appeal to the Commanding Officer for redress as stipulated in Section 178 (1) of the Act that the lower court held as non-compliance as reflected in paragraph 6:01 of the Appellant’s Brief of Argument. He argued that “APPEAL TO” and “APPEAL THROUGH” do not have the same import and application and also that an appeal made directly to the President also does not satisfy the provision of Section 178 (1) which stipulates that it first be made to the Commanding Officer and if still not satisfactory, then it can subsequently be made to the President. Relying on the case of FBN PLC v. NDOMA EGBA (1038 – 1034), Learned counsel submitted that where the condition precedent to doing an act is neglected, even if that condition precedent is a rule of law, subsequent action, no matter how meritorious is void. He urged the court to uphold the decision of the lower court.
Learned counsel remarked that the appellant predicated his appeal on the decision of the lower court which upheld the submissions of the 3rd and 4th defendants that the Appellant did not follow the procedure laid down in Section 178 (1) of the Armed Forces Act, but inexplicably, the 3rd and 4th Defendants are not parties to the appeal. According to counsel this affects the proper constitution of this appeal with respect to parties and that the proper constitution of an appeal is a condition precedent to the competence of the appeal. It is his contention that this deprives this Court the requisite jurisdiction to entertain the Appellant’s appeal. Learned counsel’s argument on issue 2, though not itemized can be garnered from the submissions in paragraphs 3.17 to 3.25 of his Brief of Argument. It is the contention of the counsel herein that the issue 2 for determination is whether the absence or otherwise of the Chief of Army Staff affected the quorum of the Army Council to take a valid decision recognized by law and that this is also the Appellant’s second issue for determination. I must point out immediately that the stance of the Appellants on issue No. 2 is different. The substance of his complaint is not based on the issue of quorum. Rather, what the Appellant postulated therein is that the lower court having found that the composition of Army Council on 11th February 2008 was unconstitutional when Exhibit ‘OVO1’ was written, the decision of the Council was void and therefore cannot be a basis for compliance with Section 178 (1) of the Armed Forces Act. A lot of energy was dissipated on the issue of quorum by the Respondent’s counsel in a bid to prove that despite the exclusion of the 4th Defendant, the Army Council formed a quorum as required by law to take an enforceable decision as the one contained in Exhibit ‘OVO1’ concerning the Appellant and urged the court to so hold. The issue as formulated by the Respondent is not borne out of the judgment of the lower court. The deliberation of the court concerning the composition of the Army Council vis-a-vis the validity of their decision on 11th February 2008 can be gleaned from pages 378 – 379. The decision of the court clearly is that at the time the letter of the 11th of February 2008 was issued to the Appellant, the Chief of Army Staff, that is, the 4th Defendant’s appointment had not been confirmed by the National Assembly therefore the council was not properly constituted to have taken a decision. All the Respondents profuse argument on this point from paragraphs 3.17 to 3.25 of their Brief of argument is to no avail, as it is fruitless because the Respondents neither filed a cross-appeal nor filed a Respondent’s Notice on this point as to make same relevant to this appeal. An issue for determination formulated in a brief of argument must stem from grounds of appeal filed by the parties. Once the issues formulated are not connected or related to any of the grounds of appeal, they are irrelevant and go to no issue. Any such issue and argument thereon are liable to be discountenanced by the appellate court. See IBATOR v. BARAKURO (2007) 9 NWLR [pt.1040] 475; AMADI v. NNPC (2000) 6 SC [pt.66] 72; SHITTA-BAY v. AG FEDEMTION (1998) 10 NWLR [pt.570] 392 SC.
It is therefore not permissible for a Respondent who did not file a cross-appeal or file a Respondent’s Notice to raise an issue not predicated on any ground of appeal in the Notice of Appeal. See NZEKWU v. NZEKWU (1989) 2 NWIR [pt.104] 374.
Issue No. 2 as couched by the Respondents and the argument thereon are bereft of any connection with the Grounds of Appeal filed by the Appellant. I therefore find it unnecessary to recapitulate his argument on this issue which I hereby discountenance. This then means that the Respondents have nothing to urge the court in respect of issue No 2, formulated by the Appellant. I will however come to that issue later.
On the Respondents, submission on non-joinder of the 3rd and 4th Defendants before the lower court to this appeal, the Appellant in his Reply to Brief of Argument relying on C.E.C.T.S. v. IKOT (2000) 142 at 155; page 1548, para 2471, Vo1.2 [111] Sasegbon Laws of Nigeria, also, rightly urged the court to discountenance this issue as raised as it is not founded on the grounds of appeal before the court. I am in full agreement with the Appellant’s counsel on this point. The Appellant filed two separate Notices of appeal. The first is dated 13th May, 2010 and filed same day (pages 381 – 385 of the Record of Appeal) while the other Notice of Appeal dated 13th May 2010 was filed 7th June 2010 (pages 336 – 390). At the hearing of the Appeal, the Appellant adopted the latter filed on 7th June 2010 as the appropriate Notice for the appeal. A glance at both notices show that the 3rd and 4th Defendants are not Respondents in this appeal. The Appellant has stated that the said persons are no longer relevant to the appeal in that at the time of filing the Notice of Appeal, the Chief of Defence Staff, General O. A. Azazi (Rtd) is no longer in service having been retired prior to this appeal while 4th defendant, the Chief of Army Staff, Lt. Gen. L.N. Yusuf who also retired prior to the appeal is now dead. Let it be said here and now, as contended by the Appellant that an Appellant has the right to choose those who to appeal against and the points he wishes to canvass. It is not compulsory that all the parties in the lower court have to automatically be made parties to the appeal. The non-inclusion of such persons cannot make the appeal incompetent as contended by the Respondents. In any case, what is material here is that this issue is not predicated on the grounds of appeal before the court. It is therefore of no moment. It is hereby also discountenanced.
At this juncture, it is pertinent to note that at the hearing of this appeal, the learned senior counsel for the Appellants specifically submitted orally, that the main issue in this appeal is whether the letter at pages 40 – 41, also at pages 121 – 122 of the Record of Appeal satisfies Section 178 (1) of the Armed Forces Act. I agree with him that this is actually the crux of this appeal. He contended that the letter addressed through the Commanding Officer sufficiently satisfies the law, but that the totality of the error of the lower court arose from page 377 of the Record where the court held thus:-
“The only fact brought to my notice by the Plaintiff is that the plaintiff has applied to the President of the Federal Republic of Nigeria as the Chairman of the Armed Forces Council that to the best of my understanding is not the procedure”
(see lines 9-12).
The court then concluded thus:
“It is my holding therefore, that the Plaintiff in this case has not satisfied the condition precedent to the commencement of this action under Section 187 (sic) of the Armed Forces Act”.
lines 20 – 22
It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void. The position of the law is clearly laid down in the case of SAUDE v. ABDULIAHI (1989) 4 NWLR [pt.116] 387 at 422 where the Supreme Court held that-
“There is non-compliance with due process of law when the procedural requirements have not been complied with or the pre-conditions for the exercise of jurisdiction have not been complied with. In such a circumstance the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seized with jurisdiction in respect of the action.”
“It is settled law that where a statute provides for a particular method of preparing a duty regulated by the statute that method and no other must have to be adopted as followed.” See FBN PLC V. NDOMA-EGBA (2006) ALL FWLR [Pt.307] 1012 at 1038.

Now section 178 of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria Provides –
“(1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Forces Council.
(2) On receiving a complaint under subsection (1) of this section, the Forces Council shall investigate the matter and grant any redress which appears to the Forces Council to be necessary or if the complainant so requires, the Forces Council shall make its report on the complaint in order to seek the directions of the President on the matter.
(3) Subject to subsection (1) of this section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action.
(4) An initial complaint by an officer to his commanding officer under subsection (1) of this section, shall be made not later than three months of the wrong in respect of which it is brought, and where the officer has not obtained the redress to which he thinks himself entitled, he may make a further complaint in the prescribed manner to the authority prescribed under subsection (1) of this section not later than three months of the complaint or of receiving the unfavourable redress, as the case may be.
(5) No officer shall be penalized for having hade a complaint in accordance with this section if the complaint does not contravene a provision of this Act.”
The wordings of Section 178, with particular reference to subsections (1) and (2) are quite clear and unambiguous. An aggrieved officer must first complain to his superior officer and if still unsatisfied, he then complains to the “Forces Council”. For proper comprehension of the procedure that has been stipulated for redress in section 178 of the Armed Forces Act it is important to identify the persons in authorities that are relevant for the exercise of a redress of an aggrieved officer. In the present case it is not disputed that the “Forces Council” is the Army Council. Indeed this whole suit is triggered by the action of the Army Council wherein at their meeting of 11th February 2008, they deliberated on the career conduct of the Plaintiff and issued Exhibit “OVOC” dated 11th February 2008 in which Appellant was advised to
“Please apply for voluntary retirement…not later than 10 (sic) March 08 so that the Army Council may not need to consider you for compulsory retirement.” (page 149 of the Record of Appeal)
Hence, the Appellants grouse is against the Army Council’ Section 9 (2) the Armed Forces Act defines the Constitution of the Army Council consist of –
(a) the Minister of Defence who shall be the Chairman;
(b) the Chief of Defence Staff who shall be the Vice-Chairman; and
(c ) the Chief of Army Staff”
Who is the commanding Officer referred to in Section 178 of the Act? An examination of the pleadings before the court shows that the 3rd defendant in the lower court was the Appellant’s commanding Officer. See paragraph 34 of the Appellant’s Affidavit in support of the originating summons (page 112 of the Record of Appeal).
“That when I received the said letter (paragraph 29), I approached my immediate boss and my Commander, Chief of Defence Staff. General O.A. Azazi to inquire whether he made any complaint or allegation of misconduct or commission of an offence against me at the meeting of the Army Council held on 11th February, 2008 in which he attended and that he should tell me what were the disciplinary offences he alleged against me;
The next important “person” to be identified in section 178 is “the Forces Council.”
By the interpretation Section 191 of the Armed Forces Act, Armed Forces” means the Nigerian Army, the Nigerian Navy and the Nigerian Air force raised under section 1 of the Act.”
It is not in dispute that the Appellant is in the Nigerian Army and as he clearly deposed to in paragraph 2 of his affidavit in support of this originating summons –
“2 that the 1st defendant is body set up by the Armed Forces Act to oversee the affairs of the Nigerian Army.”
It is thus glaring that the Appellant’s commanding officer is a member of the Army council, who is the Appellant’s aggressor’ A careful reading of section 178 (1) and (2) evinces the fact that the Appellant cannot be expected to make a complaint as required under the law to the Army Council, that is, against the same person or body that has wronged the Appellant. Ipso facto, it is also not common sensical to suggest that the same aggressor “shall investigate the matter and grant any redress” or make its “report on the complaint to the President” as required by the law. The Army council cannot be expected to be effecting a redress over itself. It will indeed be preposterous to appeal to the same Army council or any of its members being the body complained of. That will tantamount to the Army Council being a Judge in its own cause, which will be a violent breach of section 36 of the constitution as rightly contended by the Appellant. The only reasonable option in the circumstance, in my view, is for the Appellant to appeal to the President. This was the step taken by the Appellant by his letter Exhibit ‘OVO2′ at pages 40-41 of the Record of Appeal; in which an appeal for justice was addressed to the President, through the Chief of Defence Staff, who in turn forwarded same to the President by Exhibit “OVO 2A’.
I am therefore, in full agreement with the learned senior counsel for the Appellant that the Appellant substantially complied with the condition precedent before instituting this action.
Better still, it is of utmost importance to note that the contested letter of the Army Council in which the Appellant was advised to voluntarily retire, that is ‘OVO1, was premised on what it described as –
“Condition 09.02 of the Harmonized terms and conditions of service {HTACOS) for Nigerian Armed forces Officers 2007 (Revised).
See Exhibits ‘OVO1 and 2 page 22 of Record of Appeal –
“NOTIFICATION OF RETIREMENT
MAJ GEN RO ADHEKEGBA (N/5571)
Reference:
A. Army Council Meeting of 11 Feb 2008
1. Condition 09.O2a of the Harmonized Terms and Conditions of service (HTACOS) for Nigerian Armed Forces Officers 2007 (Revised) provides that an officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds, The Army Council, during its sitting on 11 Feb 08 has found out that your conduct over the time has been prejudicial to military discipline. The Army can no longer trust your ability and willingness to effectively continue in service.
2. The COAS on behalf of the Army Council deeply appreciates your contributions to the upliftment of the NA and the nation. However, as a result of the statutory guidelines of the HTACOS Officers 2007 (Revised), you are to please apply for voluntary retirement. Please send your application to the COAS not later than 10 Mar 08 so that the Army Council may not need to consider you for compulsory retirement.
3. Please inform this Department of your application and accept the warmest regards of the COAS.
SGD
SU ATAWODI
MAJ GEN
MS(A)”
Even Exhibit “OVO2A”, the forwarding letter to the President by the Chief of Defence Staff also made reference to the provisions of the Harmonized Terms of Conditions of Service for the Nigerian Armed Forces –
“His Excellency
Mr. President, C-in-C
State House
ABUJA
Dear Sir,
AN APPEAL FOR JUSTICE
MAJ GEN OVO ADHEKEGBA (N/5571)
Reference:
Maj Gen Ovo Adhekegba’s letter dated 18 February 2008.
1. Forwarded herewith, please find a copy of Reference A for your necessary action. This is in accordance with the provisions of section 09.02 (e) of the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers 2007 (Revised).
2. Respectfully submitted for Vour consideration, sir.
sgd.
OA AZAZI
General
Chief of Defence Staff.”
It is noteworthy that the Chief of Defence Staff stated therein that he was forwarding the letter in accordance with the provisions of Section 09.02 (e) of the Harmonized Terms and Conditions of Service.
Paragraph 9.02 of the Harmonized Terms and Conditions of Service for the Nigerian Armed Forces Officers (HTACOS) 2007 (revised) states –
“9.02 compulsory retirement or resignation may be effected for the following reason(s):
a. An officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds.
b. An officer who on account of ill health is reported by an approved medical board as being unfit for military service in accordance with the “Medical Standard” in the respective services shall be retired.
An officer may be compulsory retired from service by the Army Council/Navy Board/Air force Council for any of the following reasons:
1. Medical unfitness, disability etc
2. Failed promotion Examination or CAPEX 3 TIMES
3. Failed Promotion Board 3 times
4. On disciplinary grounds i.e. serious offence(s)
5. Undeployability arising from restructuring and/or lack of establishment.
6. On attaining the age ceiling of his rank.
7. Incompetence, indolence, etc
8. Disloyalty to constituted authority on written order both in peace time and in operations.
9. Failure at staff course, post-staff college course and their equivalent.
d. An officer compulsorily retired not on disciplinary ground shall be entitled to 6 months salary in lieu of notice.
e. Notwithstanding the provisions of paragraph 09.1 and 09.2, an officer shall if approved by the Army Council, Navy Board or Air Force council concern, be retired, called upon to retire, resign or relinquish his commission. An officer called upon to retire, resign or relinquish his commission shall if he so desires, appeal to Mr. President, C-in-C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer retired had collected the 3 months salary paid him/her in lieu of notice.”
Thus, the provisions of HTACOS itself stipulates the procedure for an aggrieved officer to seek reliefs. Sub paragraph (e) of 9.02 provides that such an officer shall if he so desires, appeal to the President through the CDS within 30 days for a reconsideration of his case. This was the exact procedure followed by the appellant in seeking redress over decision of the Army Council, dated 11th February 2008. His letter of Appeal to the President was appropriately routed through the Chief of Defence Staff (CDS) on 18th February 2008 (pages 17 -18 of the Record of Appeal); 7 days after, which is within the stipulated period provided by law. Thus the Appellant appropriately followed the law and procedure in seeking redress against the wrong perpetrated against him.
It is settled law that where a procedure is provided in a statute, any person aggrieved must exhaust the procedure before proceeding for redress in a court of law, for his action to be competent – see ADESOLA v. ABIDOYE (1999) 14 NWIR [pt.637] 28 SC at page 59 paras F – G, per Karibi-Whyte JSC, 60. Paragraph F, per Ogundare JSC; 65 – 66 paras H – A, per Iguh JSC; ADIGUN v. OSAKA (2003) 5 NWLR [pt.812] 95 at 121, paras D – G, 124, paras D – G, 729 paras A – G. Conversely, if the procedure for redress is followed, the party cannot be denied access to court. Having regard to the procedure followed by the Appellant in forwarding his petition through the Chief of Defence Staff to the President, he duly exhausted the administrative remedies available to him as requested by section 178 (3) of the Armed Forces Act “before embarking on any other action” which is the institution of this suit. I am therefore in full agreement with the learned counsel for the Appellant that the learned trial Judge erred in law when he held that the court had no jurisdiction to entertain this suit by reason of failure to satisfy the condition precedent to the institution of this suit. The Appellant should not be denied access to court.
It is trite law that jurisdiction of the court cannot easily be wished away hence courts guard their jurisdiction jealously as the right of access to court is constitutional. In considering whether or not a court has jurisdiction to entertain any claim, the Supreme Court has long held that while a person’s right of access to court may be taken away or restricted by a statute, the language of any such statute will be watched by the courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. A provision in a statute ousting the jurisdiction of the court must therefore be construed strictly – BACLAYS BANK OF NIGERIA LTD v. CENTRAT BANK OF NIGERIA (1976) 6 SC 115; INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1025] 423. In the cited case of NAAC v. ECONET WIREIESS LTD (2006) 37 WRN 120 AT 15S – 159, Justice Odili JCA, as he then was stated thus –
“In the interpretation of statute which restricts a citizen’s right if there should be any doubt, gap, duplicity or ambiguity as to the meaning of the words used in the enactment, it should be resolved in favour of the person who would be liable to the penalty or deprivation of his right. If there is a reasonable construction which will avoid the penalty in any particular case, the court will adopt that construction. If there is any doubt as to whether the person to be penalized or to suffer has of a right comes fairly and squarely within the plain words of the enactment, should have the benefit of that doubt.”
In this case, the Appellant duty followed the procedure laid down by law.
There is therefore no reason why he should be denied access to court. Issue No 1 is hereby determined in favour of the Appellant.
Issue No 2 is whether the learned trial Judge having found that the composition of the Army Council that demanded the Appellant’s resignation was unconstitutional, null and void; it was still necessary to consider appeal to the President, Commander-in-Chief who statutorily is the Chairman of the Armed forces Council.
A perusal of the argument prepared by Appellant’s counsel on this issue shows that Appellant was still belabouring the point to prove that the appointment of 4th Defendant was unconstitutional and therefore the composition of the Army Council on 11th February 2008 when the decision against the Appellant was taken. This in my view is not only unnecessary, but it is also uncalled for; in view of the finding of the trial judge that the council was not properly constituted to have taken such a decision. See pages 378 – 379 of the Record of Appeal.
The unconstitutionality of the action of the Army Council is a complaint upon which the Appellant could appeal stating that the decision of the Army Council is void having regard to the improper composition of the body. The channel for forwarding any complaint is what has been prescribed in section 178 of the Armed Forces Act. It is therefore not improper for the court to hold that the Appellant must comply with the condition precedent to the institution of this action. However, what is relevant to this appeal is my finding that the Appellant has indeed complied with the requirement of the law that is section 178 (1) of the Army Forces Act and the regulations made therein before instituting this suit.
In the circumstance, this appeal succeeds and it is hereby allowed. The judgment of the lower court is hereby set aside. There shall be no order as to costs.

HUSSEIN MUKHIAR, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother Akomolofe-Wilson, JCA. I agree with his reasoning and conclusion that the appeal has merit and ought to be allowed. I hereby adopt the entire reasoning and conclusion as mine and abide by the consequential orders contained in the judgment including the order as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the Privilege to read in advance the judgment of my learned brother Akomolafe-Wilson JCA, just delivered. His lordship has dealt extensively with the chore issues submitted for determination. I agree with the reasoning contained in the judgment and the conclusion arrived thereat allowing the appeal.
The law is trite that where a statute prescribes a procedure to follow before an aggrieved person can seek redress in Court it becomes a condition precedent to access to court. It is evident from the printed record that the Appellant presented his complaint to the appropriate authority before filing his suit in Court. Appellant was in compliance.
For the detailed reasoning in the lead judgment I hold there is merit in this appeal. Appeal is allowed and I abide by all consequential order.

Appearances

Chief A. S. Awomolo, SAN, with W. Balogun and Akin Aroshayin For Appellant

AND

For Respondent

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