NIGERIAN ARMY v. MOHAMMED BELLO
(2019)LCN/12560(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/J/145/2017
RATIO
INTERPRETATION: MEANING OF 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.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
INTERPRETATION: STARE DECISIS
“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.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
DEFENCE: WHETHER LIMITATION OF ACTION IS A DEFENCE
“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.” 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
MOHAMMED BELLO 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/15/2014 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 Private Trooper (aka TPR), was alleged to have absented himself from Unit without permission and was consequently charged the offence an Absence Without Leave contrary to Section 59(a) of the Armed Forces Act and one count of offence in relation to sentry. The Respondent was summarily tried by his Commanding Officer and was found guilty on both counts and was dismissed from the Nigeria Army on 8th of March, 2010. Aggrieved by his summary trial, conviction and dismissal, he commenced an action before the lower Court on the 10th of March, 2014 by way of Originating Summons 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 offences 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 the judgment and it caused its Counsel to file a notice against both the Ruling dismissing its preliminary objection and the judgment of the lower Court and a notice of appeal dated the 14th 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 stated that in considering the issue of limitation of action, the lower Court found that the Appellant was a public officer within the provision of the Public Officers Protection Act, but held that the claims of the Respondent were hinged on the fact of the Appellant acting outside the scope of its authority or acting without legal justification in dismissing the Respondent and that took the case within the exceptions to Section 2 of the Public Officers Protection Act. Counsel reproduced 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 8th of March 2010 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 10th of March, 2014, four years two days 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 stated that the depositions of the Respondent in the affidavit in support of the Originating Summons that he was summarily tried and dismissed in absentia with his having been given an opportunity to defend himself were contradicted by the contents of the letters of appeal written by the Respondent, and attached as exhibits, wherein the Appellant constantly admitted that he was summarily tried and dismissed upon his return to his Unit and that he was present thereat. Counsel stated that documents attached to an affidavit form part of the affidavit and he referred to the Shitta-Bey Vs Attorney General of the Federation (1998) LPELR 3055(SC) and Ezechukwu Vs Onwuka (2016) LPELR 26055(SC).
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 ofHassan Vs Aliyu (2010) LPELR 1357(SC).
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 the Appellant filed an affidavit in support of the preliminary objection where it deposed to facts showing that the summary trial of the Respondent took place in his presence and 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 cases of Ogoejeofo Vs Ogoejeofo (2006) LPELR 2308 (SC) and 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 contents of the affidavit deposed to by the Appellant in support of its notice of preliminary objection showed that there were serious dispute on the facts in support of the case of the Respondent and which could not be resolved on affidavit evidence.
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 affidavits 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 deliberations of the lower Court on the case substantive case of the Respondent and stated that it was obvious there from that the lower Court based its decision on the interpretation and application of Section 117 of the Armed Forces Act 2004 to the case of the Respondent. Counsel stated that the interpretation given to the provisions of the Section 117 of the Act 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 Private, a Trooper (Tpr), 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 Private 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 Private, 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 Standard 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 and no argument was canvassed thereon by the parties. 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 and he referred to the case of Takuma vs Liman (2009) LPELR 5000(CA). 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 and required no further proof and he referred to the case of Ayoade Vs Military Governor, Ogun State (1993) 3 NWLR (Pt 309) 111. 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 Udo 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 Ogundipedelivered 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 Private, 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 persen it ons thconflicts 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 ofFBN 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 Inlaks 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 Ogundipedelivered 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 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 8th of March, 2010 and that the originating process of the Respondent challenging his summary trial and dismissal by the Nigerian Army was filed on the 10th of March, 2014, four years two days 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 Act 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. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification 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 Private, 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 8th of March, 2010. 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-two paragraphs of depositions. The case of the Respondent on the affidavit in support of the originating summons was that he enlisted in the Nigerian Army on the 22nd of August, 1995 and that he was trained in counter terrorism and potential intelligence and that he served in Sudan and that he was in the service of the Nigerian Army until he was summarily dismissed from service under the command of his Commanding Officer. It was his case that at a point in time he received a telephone call that his mother of seventy-three years old was critically ill and might pass away and that he applied for a pass to exit camp to attend to his aged mother and that he exited the camp while the request for pass was undergoing administrative processing. It was his case that on his return to the camp after eight days, he was informed that his request for a pass was denied and that he had an allegation of being Absent without Leave and sentry pending against him and that upon further enquiry he discovered that he had been charged and found guilty of being Absent without Leave and sentry for eight days.
It was the case of the Respondent that he was accused by his Commanding Officer, charged by his Commanding Officer, summarily tried in his absence by the same man and dismissed by my Commanding Officer and that he was informed of his dismissal from the regiment by the Commanding Officer and directed to leave the camp. It was his case that he was not given an opportunity of being heard, there was no investigation by a Board of Inquiry and that there was no trial before he was dismissed and that the procedure adopted for his dismissal was outside the law as the Commanding Officer acting alone cannot dismiss him from service without a Board of Inquiry investigation and he was found guilty in his absence and that the punishment for being Absent without Leave is not summary dismissal. It was his case that he wrote letters of appeal for the review of his dismissal and 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.
The law is settled that a public officer who commits a constitutional breach in the course of performing his duties is not entitled to protection under the Public Officers Protection Act. Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt 843) 113 and Tajudeen Vs Federal Inland Revenue Service (2018) LPELR 43856(CA). In Muhammed Vs Ahmadu Bello University, Zaria (2014) 7 NWLR (Pt 1407) 500, this Court, at pages 539-540 F-H, put the position thus:
‘The provision of Section 2(a) of the Public Officers Protection Act is subject to the provisions of the 1999 Constitution. A public officer who has contravened the provisions of the Constitution, particularly as they relate to the fundamental rights enshrined therein, in the execution of his public duty cannot claim protection under the Act. The public officer can only seek for such protection when he is not guilty of flagrant abuse of the Fundamental Human Rights in the execution of his public duties.’
The depositions of the Respondent on allegations of abuse of procedure on the part of the Commanding Officer of the Respondent in dismissing him without having first conducted a Board of Inquiry investigation as well as the allegations of breach of the right of fair hearing of the Respondent by the Commanding Officer clearly took the case of the Respondent to within the exceptions to the protection under Section 2(a) of the Public Officers Protection Act. This is not a case that the Appellant should have raised limitation of action as a preliminary issue. It should have raised it as part its defence for consideration at the conclusion of hearing of the substantive case. The finding of the lower Court in the Ruling that the protection under Section 2(a) of the Public Officers Protection Act was not available to the Appellant in view of the depositions in the affidavit of the Respondent cannot be faulted. The first issue for resolution is determined in favour of the Respondent.
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 also constitutes a breach of the right of the Respondent to fair hearing; and (iii) that dismissal from service was not one of the punishments prescribed in Section 116(1)(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.
In its response, the Appellant deposed to a counter affidavit wherein it denied the case of the Respondent and stated that the Respondent had a reputation for high level of truancy and indiscipline and was known for leaving his Unit to unknown destinations and for failing to turn up for duties and that several disciplinary cases against the Respondent and the necessary corrective measures taken against him to make him a better person proved abortive. It was its case in one of such instances, the Respondent failed to turn up for duty at the Arms Store when detailed as Guard Commander from 29 of September 2009 to 6th of October 2009 and he was declared Absent without Leave and that upon becoming aware of the Absent without Leave signal, the Respondent resurfaced and he was tried, found guilty and was admonished by his Commanding Officer. It was its case that from the 27th of February, 2010 to the 8th of March, 2010, the Respondent was again absent from duty and was equally not seen at his duty post and he did not apply for nor was he issued with a pass and there was no news of his where about.
It was the case of the Appellant that the Respondent was declared Absent without Leave by his Releasing Officer, and not by his Commanding Officer, and that upon becoming aware of the Absent without Leave signal, the Respondent returned to camp and was re-jabbed and was duly informed of the allegation and was referred to the Commanding Officer for discipline. It was its case that the Respondent was charged and he was tried and summarily dismissed by the Commanding Officer and he was present at the trial and was given a fair hearing. It was its case that it cannot dismiss a soldier in absentia and that a Board of Inquiry investigation was not carried out because that only becomes necessary where a person subject to Service Law is Absent without Leave for twenty-one days and more. It was its case the appeals of the Respondent for a review were considered and rejected on the advice of the Legal Unit of the Nigerian Army.
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 not convened to look into the circumstances of the Respondent’s absence without leave because that only becomes necessary where a person subject to Service Law is Absent without Leave for twenty-one days and more; and (iii) that the applicable provisions on punishment in the Armed Forces Act applicable to the Respondent was Section 116(1)(b), and not Section 116(1)(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(1)(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 Private, 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 LTD (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 Force 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 ? Animashawun 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 Lemninkainen 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 Olarewaju (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 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 resolved in favour of the Appellant.
In conclusion therefore, this Court finds some merit in the appeal and it hereby allows same, in part. The appeal against the interlocutory Ruling of the National Industrial Court of Nigeria sitting in Jos delivered in Suit No NICN/JOS/15/2014 by Honorable Justice R. H. Gwandu on the 22nd of June, 2015 fails and it is hereby dismissed, while the appeal against the judgment of the National Industrial Court of Nigeria sitting in Jos delivered in Suit No NICN/JOS/15/2014 by Honorable Justice R. H. Gwandu on the 18th of March, 2016 succeeds and the judgment is hereby set aside. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My Lord HABEEB A. O. ABIRU, JCA obliged me with the draft of the leading judgment just delivered. I agree with his Lordship that the appeal against the interlocutory ruling in Suit No: NICS/JOS/15/ 2014 delivered on the 22nd of June, 2015 fails and should be dismissed. Whereas the appeal against the judgment of the same trial Court is meritorious and should be allowed.
Let me add that the doctrine of fair hearing is an age long principle embodied in the natural justice principle of “Audi alteram Partem” meaning hear the other side. It is a right giving all parties equal opportunities of being hard in issues and matters in contention. It is a constitutionally guaranteed right under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Therefore, it is fundamental and sacrosant in the determination of the civil right, obligation and liberties of parties to a dispute. SeePAM V. MOHAMMED (2008) 16 NWLR (PT. 1112) AT PAGE 13, DEMSA LOCAL GOVERNMENT V. JOKEMS NIGERIA LIMITED (2012) LPELR. 208 64.
It therefore survice to say that “fair hearing” is not an expression of mere rhetoric or empty verbalism but a fundamental right of an individual guaranteed by the Constitution and the breach of which will nullify the proceedings in favour of any party that is a victim of the infraction. See GBADAMOSI V. DAIRO (2007) VOL. 145. LRCN 508., MRS C. O. OTOKI V. OYEWOLE EDUN ALAKIJA (2012) LPELR 7994.
Accordingly, I also find some merit in the appeal, and it is hereby allowed in part.
The appeal against the interlocutory Ruling of the trial Court in Suit NICN/JOS/15/2014 fails and dismissed.
The appeal against the judgment of the trial Court in Suit No: NICN/JOS/15/2014 delivered on 18th March, 2016 is allowed. I abide by the consequential orders contained in the lead judgment.
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 by 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)
