THE NIGERIAN ARMY & ANOR v. WO FRANK ALADE & ORS
(2019)LCN/12789(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/A/182/2018
RATIO
INTERPRETATION: WHO IS AN AGGRIEVED PERSON
“That the right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. Such ‘aggrieved person’ was also defined in the said Odedo’s case (supra) as a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully refused him or her of something or wrongfully affected his or her title to something. The Supreme Court further held that an aggrieved person includes a person who has a genuine grievance; because an order has been made which prejudicially, affect his interest. See also L.S.D.P.C VS Dakar (1992) 11-12 SCNJ 217, 224, Ojukwu Vs Government of Lagos State (1985) 2 NWLR (PART 10) 806. ?K? Line Inc. Vs. K.R Int. (1993) 3 NWLR (part 292) 159; Funduk Eng. Vs Mac Arthur (1990) 9 NWLR (part 143) 266; Societte Generale Bank Vs Afekoro (1999) 11 NWLR (part 628) 521; Ezeagu Local Govt. Vs Ufuanya (1996) 7 NWLR (part 459) 226; Yusuf Vs Adeyemi (2009) 15 NWLR (part 1165) 616 and Opekun Vs Sadiq (2003) 5 NWLR (part 814) 475.” PER ADAMU JAURO, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT THE SUPREME COURT
“See Lafia local Government Vs The Executive Governor Nasarawa State & Ors (supra). It is trite that the issue of jurisdiction can be raised at any stage of the proceedings and even in the Supreme Court for the first time. See Usman Danfodio University Vs Kraus Thompson Organization Ltd (2001) 15 NWLR (part & 36) 305, F.H.A. Vs Kalejaiye (2010) 19 NWLR (1226) Page 147 @ page 164 paragraph B.” PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. THE NIGERIAN ARMY
2. THE CHIEF OF ARMY STAFF Appellant(s)
AND
1. WO FRANK ALADE
2. WO IBINABO AMAFINA
3. SGT ALI EJIGA
4. CPL ABIODUN OGUNBIYI Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the decision of the National Industrial Court, Abuja Division delivered in Suit No. NICN/ABJ/343/2013 by Hon. Justice B. A. Adejumo on 16th January, 2018.
The facts of the case were that, the action was instituted before the lower Court by the Respondents as claimants, against the appellants as defendants. The gist of the claimants’ case was that they were enlisted into the Nigerian Army on various dates, with various army Nos. as stated in their statement of facts. That sometimes in the year 2006, the 1st Appellant carried out a personal audit tagged operation know your Soldiers (OP. KYS) and in the course of the personal audit, a discrepancy in the pay list of the 1st Defendant involving the claimants was reported to the then Commander of the 81 Division Finance Corps. The claimants averred that based on the allegations above, they were summoned to the 81 Division Finance Corps Headquarters and later detained in Arakan Barracks with the exception of the 4th claimant who was held in the guard room. The claimants denied the allegation against them.
After spending some days in detention, claimants were taken in handcuffs to the Commander, Command Finance office Arakan Barracks, who after hearing from them ordered for their release.
Claimants further averred that sometimes in June, 2006, they were reposted to Arakan Barracks, where, one Major Muhammed Ja’afar, the then Admin officer at the Command Finance Office (CFO), on the alleged instruction from above directed all the claimants to write voluntary discharge from the services of the 1st Defendant/Appellant. Though the claimant protested for their voluntary discharge, but they were forced to illegally write for the discharge. Names of the claimants were published in a circular titled ‘Voluntary Discharged Soldiers 79NA/20398 MWO Eze Mark and 87 others’ dated 21st February, 2007. The claimants contended that their compulsory discharge from the service of the 1st Defendant was contrary to the provisions of the Armed Forces Act Cap A20 LFN 2004. They averred further that the action of the 1st Defendant in compulsorily discharging them from its services is punitive, unwarranted and has lowered their standing in the estimation of their peers and ordinary person, in addition to the severe trauma they have gone through as a result of the loss of income.
As a consequence of the foregoing, the claimants claimed against the Defendants jointly and severally as follows:
a) A Declaration that the purported compulsory discharge of the claimants from the Nigeria Army by the Defendants is punitive, actuated by malice, unconstitutional, unlawful and contrary to the provisions of Armed Forces Act Cap A20 LFN 2004.
b) An order of this Hon. Court nullifying the purported compulsory discharge of the claimants from the Nigeria Army.
c) An order directing the Defendants to render accounts of the claimants’ salaries allowances and emoluments since December, 2007.
d) An order directing the Defendants to forthwith, pay all the salaries, allowances and emoluments due to the claimants from December, 2007 until the compliance of the judgment of this Hon. Court by the Defendants.
e) An order directing the Defendant to pay to the claimants the sum of N50,000,000.00k (Fifty Million Naira) being exemplary damages for the trauma suffered by the claimants as a result of the punitive, malicious, unconstitutional and unlawful conducts of the Defendants.
f) An order of perpetual injunction restraining the Defendants from terminating, stopping or howsoever interfering with the employments of the claimants by the 1st Defendant except as provided under the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Armed Forces Act Cap A20 LFN 2004.
g) The sum of N5,000,000.00k (Five Million Naira) being the cost of this suit.
See pages 4 – 9 of the record of appeal.
In response to the claimants’ suit, the Defendants/Appellants filed notice of preliminary objection dated 31st January, 2014 and filed the same date. The grounds for the objection were:
1) That this suit was instituted by the Claimants/Respondents without due compliance with the provision of Section 179 of the Armed Forces Act Cap A20 LFN 2004 rendering the suit incompetent.
2) That the Defendants/Applicants are public officers within the provision of Section 2(a) of the Public Officers Protection Act Cap 41 LFN 2004.
3) That this suit is statute barred against the Defendants/Applicants in this matter by virtue of Section 2(a) Public Officers Protection Act, Cap P41 LFN.
4) That the alleged cause of action as disclosed in the claimants/Respondents’ suit arose on the 1st March, 2007 and this suit was instituted on the 18th day of December, 2013 making this suit statute barred before this Honourable Court. See pages 57 to 58 of the record of appeal.
The said notice of preliminary objection was supported by a written address on pages 59-64 of the record. In answer to the applicant’s preliminary objection, Respondents filed their written address. See pages 65 to 73 of the record. Applicants further filed reply on point of law to the claimants/Respondent’s address. See pages 74-80 of the record of appeal.
On 16th May, 2014, a ruling on the Defendants/appellants preliminary objection was delivered, wherein the said preliminary objection was dismissed for totally lacking in merit. The case thereafter proceeded to hearing. See the supplementary record transmitted to the Court on 19th June, 2018. The Defendants were then given 24 days, within which to file and serve their statement of defence. The said statement of defence was jointly filed by the Defendants on 30th April, 2015. The Defendants/Appellants denied the claimants/Respondents claim. They contended that the claimants were never compelled to apply for a voluntary discharge, but were compulsory discharged in accordance with the law. They sated that the claimants are not entitled to the relief sought and that what claimants are entitled to are their terminal benefits only, which they have failed to appropriately process and claim. They further contended that the claimant’s suit is incompetent for being statute barred and urged the lower Court to decline jurisdiction.
During the trial before the lower Court, claimants presented 4 witnesses and tendered 13 documents. The Defendants/Appellants in their defence called one witness and tendered the defendants’ witness statement on oath which was admitted in evidence as exhibit DW1A – DW1A2. At the end of the parties case, the learned trial judge delivered his judgment on the 16th January, 2018 wherein judgment was entered for the Appellants in the following words:
“I have carefully considered the fact, evidence and authorities cited by the claimant in this case and I am not convinced that the claimants have discharged the onus of proof required of them by law. It is my humble view that the reliefs of the claimants in their claim must fail having failed to adduce sufficient evidence before this Court to prove same and I so hold. For avoidance of doubt, it is hereby held that the claimants having failed to adduce credible, convincing and reliable evidence in proof of their case, this suit is hereby dismissed. In view of all that have said, I hereby hold that the case of the claimants lacks merit and same is hereby dismissed.”
Distressed with the aforestated decision despite being in their favour, Appellants appealed to this Court on the ground that the learned trial judge erred in law when he went ahead to deliver judgment on the merit of the case, when it lacked jurisdiction to entertain the suit. The ground and the particulars of error are contained on page 220 of the record of appeal.
The appellants sought for the following reliefs from this Court:
a) An order of this Honourable Court upholding this appeal and setting aside the judgment of the lower Court on the ground that it had no jurisdiction to entertain the suit by virtue of Section 2(a) of the Public Officers Protection Act.
b) And for such further order or orders as this Honourable may deem fit to make in the circumstances of this case.
The record of appeal was compiled and transmitted to the Court on 5th March, 2018. Two separate supplementary records of appeal were also transmitted on 11th April 2018 and 19th June, 2018 respectively. Parties subsequently filed and exchanged their respective briefs of argument in accordance with the rules of Court. The Appellants brief of argument that was settled by Abdulwahab Mahammed Esq., is dated 20th March, 2018 and filed the same date. Appellants further filed Reply brief of argument dated 27th April, 2018 and filed on 2nd May, 2018. The Respondents brief of argument on the other hand, was settled by Shaibu Enejoh Aruwa Esq., which is dated and filed on 18th April, 2018.
The appeal was heard on 10th December, 2018. The Respondents filed a notice of preliminary objection, to the hearing of the appeal. Their learned counsel Shaibu Enejoh Aruwa identified and adopted the Respondent’s notice of preliminary objection, before the appellant’s counsel, Abdulwahab Muhammed Esq., adopted the
Appellants’ brief of argument, as well as Appellant’s Reply brief of argument. Before delving into the merit of the appeal I will first consider the Respondents’ preliminary objection to the hearing of the appeal, and thereafter if need be, the merit of the appeal will be considered.
The Respondents’ notice of preliminary objection is predicated on the following grounds:
i) The Appellants cannot be described as aggrieved persons since the final judgment of the Court below is in favour of the Appellants.
ii) This appeal is a mere academic exercise as the Appellants have nothing to gain in the outcome of this appeal.
iii) This appeal is predicated upon the interlocutory ruling of the Court below wherein the preliminary objection of the Appellants was dismissed.
iv) The Appellants are out of time within which to have filed this appeal and have not obtained leave of this Honourable Court before commencing this appeal.
In making submission in support of the preliminary objection, learned counsel submitted that the present appeal is a gross abuse of the processes of this Court, a mere academic venture being undertaken by the Appellants. He referred to pages 57 – 61, 176 – 180, 200 – 218 of the record of appeal and pages 1- 12 of the supplementary record. Counsel submitted that the exercise of the right of appeal from the decision of the lower Court as enshrined under Section 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and is limited to aggrieved persons or parties. He referred to the cases of Mobil Producing Nigeria Limited Vs Monokpo (2004) 9 WRN Akinbiyi Vs Adelabu (1956) SCNLR 109.
It was contended that the Court below having dismissed the claims of the Respondents, the Appellants in this appeal have not lost anything to warrant the institution of this appeal. Reference was made to the cases of Kayode Vs Abdulfatai (2012) 33 WRN 145 at 171 – 172 and Labour Party Vs Bello (2016) 35 WRN 145.
It was further submitted that this appeal is against the interlocutory ruling of the Court below dated 16th May, 2014 hence cannot properly lie before the Court, without the leave of this Court the time to file the appeal having elapsed. Reliance was placed on Section 24(2) (a) of the Court of Appeal Act Cap 36 LFN 2004 and the case of Anachebe Vs Ijeoma (2015) 31 WRN 52. Learned counsel urged the Court to strike out/or dismiss this appeal for being incompetent and gross abuse of the process of this Honourable Court with substantial cost.
Replying the above submissions, learned counsel for the Appellants submitted that the instant appeal is not against the ruling of the lower Court delivered on the 16th May, 2014 but rather is against the final judgment of the lower Court delivered on the 16th January, 2018. He referred to pages 219 – 221 of the record of appeal. He submits further that the Appellants in their final written address had raised the issue of jurisdiction again and the lower Court having gone into the merits of the case and found out that the dismissal of the Respondents was not based on bad faith, malice or outside the colour of the Appellants’ office ought to have struck out the suit and not to have dismissed the suit in favour of the Appellants on the merit. He referred to page 217 of the record of appeal.
On the submission that the Appellants are out of time and having failed to seek leave of the lower Court to file the instant appeal renders the appeal incompetent, it was submitted that the appellants can raise the issue of jurisdiction at any time, even at this Court for the first time. He argued, the fact that it has been raised earlier, does not stop the appellants from raising it again in this Court. Reliance was placed on the case of Lafia Local Government Vs The Executive Governor Nasarawa State & Ors (2012) 17 NWLR (part 1328 page 94. Learned counsel maintained that the grouse of the appellant is against the judgment of the lower Court which refused to consider the issue of jurisdiction raised in the Defendant/Appellants’ final written address, which it ought to have upheld in view of the fact that the lower Court is bereft of any jurisdiction ab initio to have gone into the merits of the case.
On the submission that the right of appeal is only limited to aggrieved persons or party, it was argued that the Appellants have a right of appeal conferred on it by Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He referred to the cases of Saraki & Anor. Vs Kotoye (1992) LPELR 3016 (SC), Imegwu Vs Okolocha & ors (2013) LPELR 19886 (SC)
On the argument that the Appellants have not lost anything to warrant the institution of this appeal, it was contended that though the decision of the Court below is in favour of the Appellants, they are of the conviction that the lower Court lacked the requisite jurisdiction to have determined the suit in the first place. He said the case of Ngere Vs Okuruket “XIV” (supra), cited by the Respondents, supports the case of the appellants. In concluding, he urged the Court to discountenance the preliminary objection of the Respondents, and allow the appeal by setting aside the decision of the lower Court for lack of jurisdiction.
In determining the preliminary objection, I will start by considering the argument that the instant appeal is against the interlocutory ruling of the lower Court of 6th May, 2014 which was filed out of time and without the leave of the Court as contended.
By virtue of Section 24(2) (a) Court of Appeal Act, Cap C36 LFN 2004, the time within which to appeal an interlocutory decision of the lower Court in civil matters is fourteen days. See also N.I.C Vs Acen Ins. Co. Ltd. (2007) 6 NWLR (part 1031) page 589 at page 602 paragraph F.
An interlocutory appeal that ought to have been filed within 14 days and filed outside this period without extension of time and the leave of Court is incompetent. See Kofun Vs Olasewere (2010) 1 NWLR (part 1175) page 411 at page 430 paragraph C.
The instant case, as borne out from the notice of this appeal is not against the interlocutory decision of the lower Court, but rather against the final decision of the lower Court which does not require seeking the leave of the Court before filing same.
The ground upon which the appeal was brought, borders on the jurisdiction of the lower Court to entertain the respondents’ suit. Though the issue was raised by the appellants in their preliminary objection and was decided against them, they were still not precluded from raising it again in this Court. See Lafia local Government Vs The Executive Governor Nasarawa State & Ors (supra). It is trite that the issue of jurisdiction can be raised at any stage of the proceedings and even in the Supreme Court for the first time. See Usman Danfodio University Vs Kraus Thompson Organization Ltd (2001) 15 NWLR (part & 36) 305, F.H.A. Vs Kalejaiye (2010) 19 NWLR (1226) Page 147 @ page 164 paragraph B.
The judgment of the lower Court clearly considered the issue of jurisdiction, as canvassed by the appellant in this appeal. The appeal emanated from the final decision of the lower Court, which required no leave to file same. The respondents’ argument on this issue is baseless and is hereby discountenanced.
Learned counsel for the respondents also contended that the appellants cannot exercise their right of appeal enshrined in the Constitution of the Federal Republic of Nigeria, as exercising same is limited to aggrieved persons or party. As a general rule and by virtue of the provision of Section 243 (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) right of appeal from the decision of the Federal High Court or a High Court to the Court of Appeal is exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the Court of Appeal at the instance of any other person having an interest in the matter. See F.R.N Vs Igbinedion (2015) 2 NWLR (part 1444) page 475 at pages 494 paragraph A-E.
The Supreme Court in the case ofOdedo Vs Oguebego (2015) 13 NWLR (part 1475) page 229 at 268 paragraphs D-H interpreted the above provision of 243 (1) of the 1999 Constitution that the provision creates a right which it vests in an intending appellant and not an intending respondent. That the right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. Such ‘aggrieved person’ was also defined in the said Odedo’s case (supra) as a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully refused him or her of something or wrongfully affected his or her title to something.
The Supreme Court further held that an aggrieved person includes a person who has a genuine grievance; because an order has been made which prejudicially, affect his interest. See also L.S.D.P.C VS Dakar (1992) 11-12 SCNJ 217, 224, Ojukwu Vs Government of Lagos State (1985) 2 NWLR (PART 10) 806. ?K? Line Inc. Vs. K.R Int. (1993) 3 NWLR (part 292) 159; Funduk Eng. Vs Mac Arthur (1990) 9 NWLR (part 143) 266; Societte Generale Bank Vs Afekoro (1999) 11 NWLR (part 628) 521; Ezeagu Local Govt. Vs Ufuanya (1996) 7 NWLR (part 459) 226; Yusuf Vs Adeyemi (2009) 15 NWLR (part 1165) 616 and Opekun Vs Sadiq (2003) 5 NWLR (part 814) 475. In the instant case, the Appellants are not complaining that the judgment of the lower Court, had adversely affected them. It was not also established that the decision of the lower Court wrongfully refused the appellants something or they were prejudicially affected by the said judgment. The authorities cited by the appellants for example Saraki & Anor. v Kotoye (supra) only supports the position that the right of appeal is only vested on an aggrieved party. In this case, appellant did not show whatsoever that they were aggrieved with the judgment of the lower Court, more particularly in line with the Supreme Court’s decision in Odedo’s case (supra). The Respondents’ argument on this point is hereby sustained.
Another argument canvassed by the Respondents for their preliminary objection is that this appeal is an academic exercise.
It is trite law that a suit is academic where it is merely theoretical, makes empty sound, and no practical utilitarian value to the plaintiff, even where judgment is given in his favour. See Odedo Vs Oguebego (supra) at page 251 paragraphs A – B; Plateau State Vs Attorney General of the Federation (2006) 3 NWLR (part 967) 346. In the instant case, the appellants are only pursuing an empty drum, as no practical utilitarian value is set to be achieved by the Appellants, the fact that claimants’ case was already dismissed by the lower Court, the appeal is an academic exercise. It has been settled that a Court of law will not engage itself in adjudicating in academic or hypothetical questions. See A. T. Ltd Vs A.D.H Ltd (2007) 15 NWLR (part 1056) 118, Akinfolanin Vs Akinnola (1994) 3 NWLR (part 335) 659.
Having regards to the findings that the appellants are not aggrieved persons by the decision of the lower Court and the fact that this appeal is an academic exercise, the Respondents’ preliminary objection is hereby sustained. The appeal No. CA/A/182/2018 is hereby struck out. There will be no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my earned brother, Adamu Jauro, JCA.
My learned brother in a well thought out judgment concluded that this appeal is nothing but an academic exercise.
The Court, I must say has no business with any academic or moot question as the valuable judicial time cannot be expended on such issues. See K.R.K. Holdings Nig. Ltd V. First Bank of Nig. Ltd & Anor. (2016) LPELR-41463 (SC); Abraham V. Akeredolu & Ors. (2018) LPELR- 44055 (SC).
I therefore align myself with the reasoning of my learned brother in the lead judgment to uphold the preliminary objection. I abide by the order striking out this appeal.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Abdulwahab Mohammed Esq., with him, Adoyi Michael Adoyi, Esq., Ruth Keneboth, Esq and Sheidu Mahadiyat, Esq.For Appellant(s)
S. E. Aruwa, Esq with him, P. T. Soje (Miss). For Respondent(s)
