LCPL ABDUL UMAR -Vs- NIGERIAN ARMY & 6 Ors - National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE O. O. OYEWUMI

THIS 24^th MARCH, 2021 SUIT NO NICN/ABJ/47/2020

BETWEEN:

1. LCPL ABDUL UMAR -CLAIMANT

AND

1. NIGERIAN ARMY

2. NIGERIAN ARMY COUNCIL

3. CHIEF OF ARMY STAFF -DEFENDANTS

4. ARMED FORCES COUNCIL

5. CHIEF OF DEFENCE STAFF

6. ATTORNEY GENERAL OF THE FEDERATION

7. HONOURABLE MINISTER OF DEFENCE

REPRESENTATIONS

Moses Ukachukwu Esq. for the Claimant

Isah Shuaibu Esq with P. . Attah Esq. and Eric Udoji Esq. for the 1^st-3^rd defendants

Adebobola Odegbesan Esq. with O.M. Ogundijie for 4^th,5^th and 7^th defendants

Maimuna L. Shiru (Mrs ) with Okoye A. Princess for the 6^th defendant.

JUDGMENT

1. By a General form of complaint dated 24th February, 2020, the Claimant prayed this Court for the grant of the following reliefs against the defendants;

a. A declaratory order of this honourable Court that the purported regimental dismissal of the Claimant from the services of the Nigerian Army by the 1st-5th defendants on the 20th September, 2007 constituted an unfair and or wrongful dismissal and therefore wrongful, unlawful, illegal and unconstitutional.

b. A declaratory Order of this honourable Court that the action of the 1st- 3rd defendant sherein jointly and severally in procuring the punishment of 49 days detention and regimental dismissal of the Claimant without any legal or factual basis is wanton breach of all principles of natural justice as well as relevant constitutional provisions with respect to fair hearing and due process and as shown on the facts of this case is malicious, arbitrary and constitutes abuse of office hiding under colour of law or office.

c. A declaratory Order of this honourable Court that the actions of the defendants in this case constitutes a most wanton and unconstitutional application of unfair practices to the direct detriment of the claimant.

d. An Order of this honourable Court setting aside the regimental dismissal of the Claimant on the 20th September, 2007 by or on behalf of the 1st and 3rd defendants for being unlawful, invalid, unconstitutional, void and of no effect whatsoever.

e. An Order of the honourable Court directing the defendants to pay the Claimant the sum of N8,025,334.32 (Eight Million, twenty-five thousand, three hundred and thirty-four naira, thirty two kobo), being the salary arrears the defendants owe the Claimant.

f. An Order of the Honourable Court directing the immediate reinstatement of the Claimant to his statutory protected employment or service in the Nigerian Army as Staff Sergeant and which reinstatement is to be made effective from 20th September 2007 with all rights and entitlements of the claimant.

g. An order of this honourable Court directing the defendants to pay the claimant all his salaries starting from 20th September 2007 till the date judgment is delivered.

h. An Order of the honourable Court restraining the defendants, their agents, privies however and howsoever described from harassing or subjecting the claimant to any form of arbitrariness on account of this action and or claim before this honourable Court of competent jurisdiction in pursuance of the legal right of the claimant.

i. Compensatory, aggravated and exemplary damages in the sum of N200,000,000.00 (Two hundred million naira) only jointly and severally against the defendants.

j. Sum of N2,000,000 (Two million naira) only being the cost of litigation.

2. Filed in support of the above is 55 paragraphs pleadings where in the Claimant averred that he was a soldier in the Nigerian Army in the 1 Battalion Birnin-Kebbi, Kebbi State with Army No 95NA/39/2650 who was promoted to the rank of a Lance Corporal in 2002 . He pleaded and relied on his employment Notice and list of 2002 promotion of Soldiers. He averred that he was however dismissed from service by the Commanding Officer of his battalion on the 20th day of September, 2007. According to him, his gross and net salary in August 2007 were N16,553.58 and N15,764.80 respectively and he pleaded in support the Nigerian Army pay slip .He averred further that he was not paid his salary from September- December,2007 amounting to the sum of N66,212.00. He continued that as a result of a nationwide increase in the salaries of soldiers nationwide, his salary increased to the sum of N51,020.00. According to him, he was woken up from sleep on the night of the 24th July by the disturbing snore of a drunk civilian at his corridor and who had apparent marks of wounds which were later discovered to be from a previous road traffic accident and who later turned out to be the brother of one of his superior officers in the barracks. He averred that after he made a report he informed the duty Regimental Police(RP), as instructed by his superior and he and the duty RP both lifted the civilian who later pleaded to be left off as he could locate his way and which they did and went their separate ways. The next morning, the corpse of the civilian was found and which led to the arrest of both he and the duty RP. Following their arrests, they were both detained for 49 days and subsequently charged in a summary trial before his commanding officer. According to him he was maliciously dismissed without the cause of the death of the deceased Joseph Aboh ascertained. He stressed that he had no hands in the death of the civilian and pleaded a photocopy of the medical certificate of death of the deceased Joseph Aboh which revealed the cause of death to be something else. He contended that his trial was defective as it was not conducted in accordance with any legal standard. He equally averred that there was no investigation of the charges preferred against him. He further contends that he was not given fair hearing in his summary trial as he was not allowed to defend himself neither was any witness called against him. As a result of his dismissal, he and his co dismissed colleague wrote several letters of appeal in person and by legal representation to some of the defendants and other authorities. Upon the futility of his appeals, he instituted this action in Court and paid his Counsel for legal representation. The claimant in support of his case called two witnesses, himself as CW1 and CW2. He tendered several exhibits as contained in list of documents in support of his claim.

3. In response, the 1st-3rd defendants filed a 27 paragraph statement of defence together with a 23 paragraphs written statement on oath. The 1st-3rd defendants in their averments admitted that the claimant was an ex soldier who was dismissed from their services. They denied the claimants claim that he was employed by the Nigerian Army or that he was paid the pleaded salary monthly or that there was a nationwide increase in soldiers’ salary and put him to the strictest proof. They contended that the claimant had hands in the death of the deceased Joseph Aboh as he and the dismissed duty RP were implicated in the investigation of the death of the deceased. They equally contended that contrary to the claimant’s claim that his trial was defective because he was not charged in the prescribed form, he was charged in accordance with the law before the commanding officer. They averred that due process was followed in the claimant’s trial in accordance with the law. In support of this they pleaded the two charge sheets of the claimant, the minor offences book, and several other certified true copies of other documents as contained in the list of documents to be relied on. It is their contention that the claimant was given fair hearing and the punishment of dismissed regiment awarded by the Commanding officer was within his statutory disciplinary powers. They asserted that the claimant’s summary trial and subsequent punishment was in accordance with the laid down procedure in the military and in accordance with the law. They contended that the claimant is not entitled to any of the listed claims or reliefs against them or any other defendant. They urged the Court to dismiss the claim of the claimant.

4. In the same vein, the 4th, 5th and 7th defendants responded by filing their pleadings. They filed a 16 paragraph pleadings along with a 21 paragraph witness statement on oath. They averred that they are not aware of any wrongful dismissal. They contended that the claimant was dismissed in accordance with laid down procedure. They denied the claims of the claimant as regards the incidents that preceded the death of the deceased Joseph Aboh. They averred that the Claimant was implicated in the death of the said Mr Joseph Aboh. They averred further that the claimant was duly charged and tried in accordance with the applicable laws and procedures. They denied that the claimant’s trial was defective and his claims that there were no investigation of the offence against him or that Commanding officer was bias to the Claimant. They denied the claimant’s claim that he wrote a letter of appeal/ review to the appropriate authority within the time prescribed and that he wrote to the chief of Army Staff severally. They denied receiving a copy of the claimant’s petition to the 7th defendant and gave him notice to provide the acknowledged copy of the said petition. They denied the claimant’s claims about his trial and urged the Court to discountenance same as it is aimed at tarnishing the good image of the defendants. They denied the claimant’s claim to the arrears of salary, damages, cost of litigation and other reliefs and state he is not entitled to them. They averred that the claimant does not have any cause of action against the defendants and this action is statute barred. They urged the Court to dismiss the action with substantial cost

5. Equally, the 6th defendant responded by filing a 12 paragraph statement of defence but did not file any written statement on oath. He denied the claimant was an ex soldier dismissed from the Nigerian Army by his Commanding officer on the 20th day of September, 2007. It denied all material allegation of facts contained in the claimant’s statement of claim. It is its contention that it does not know the claimant in this suit and neither did it dismissed him from the Nigerian Army. The 6^th defendant averred further that it has always carried out its duties in accordance with laid down laws, rules and procedures. It equally averred that it was neither part of the trial of the claimant nor his punishment. It is its contention that the claimant’s claim has not disclosed any cause of action against it. It averred that it will rely on the witness statement on oath of other defendants in this suit as if they are his. He contended that the claimant’s claim are lacking in merit and urged the Court to dismiss the suit in its entirety or strike out the name of the 6th defendant in this suit for non disclosure of cause of action against him.

6. The 1st- 3rd defendants had entered an appearance on protest challenging the jurisdiction of this Court to entertain this suit. They filed a Notice of Preliminary Objection to the jurisdiction of this Court on the following ground;

The claimant/respondent’s suit is statute barred and incompetent by virtue of section 2(a) of Public officer’s Act, CAP P41 Laws of the Federation of Nigeria.

7. Learned Counsel submitted that by the provisions of Section 2 (a) of the Public Officers Protection Act POPA, CAP P41, LFN, 2004 actions against public officers on acts done in the pursuance or execution of Public duty are to be instituted within 3 months from the day the act was done. He submitted that the 1st-3rd defendants are public officers under the Act. He submitted that the action of the claimant is statute barred having been brought outside the statutory period of 3 months. He opined that the cause of action arose on the 20th day of September, 2007 or on 1st September 2009 when the 3rd defendant stated that he has upheld the dismissal of the claimant from the Nigerian Army. He relied on the following authorities; Ibrahim v. Judicial Service Committee, Kaduna State [1998] 14 NWLR (Pt 584) 1SC; Forestry Research Institute of Nigeria v. Gold [2007] 11 NWLR (Pt 1044) 1 SC @ 29, Paras B-E;Tajudeen v. C.I.P.S.B [2010] 4 NWLR (Pt 1184) 325; Sulgrave Holdings Inc &Ors v. Federal Govt of Nigeria & Ors [2012] LPELR-15520 (SC); Ladoke Akintola Univ of Technology v. Ogunjobi [2006] 2 NWLR (Pt 971) 569 CA. Learned Counsel urged the Court to hold that the complaint of the claimant is incompetent and robs the Court of jurisdiction to entertain the matter.

8. The claimant in response filed a reply to the preliminary objection of the 1st-3rd defendants. Learned Counsel for the claimant submitted that the action of the claimant is not statute barred. He submitted further that the claimant being dissatisfied with his summary dismissal complied with the provisions of Section 147 (2) of the Armed Forces Act in seeking redress within the prescribed one month. H equally submitted that by the combined effect of sections 178 and 179 of the Armed Forces Act, the claimant complained to one of the appropriate authorities as stated in paragraph 26 of the statement of fact. He said the claimant following the provisions of sections 178 and 179 has been trying to exhaust administrative remedies before filing this suit. He submitted that the claimant should not be penalized for following the due process of law. He urged the Court to hold that the action of the claimant is not statute barred. He urged the Court to dismiss the objection filed by the 1st-3rd defendants.

9. The 1st- 3rd defendants replied by filing a reply on points of law to the response of the claimant. Learned Counsel for the 1st-3rd defendants submitted that the response of the claimant is misconceived as both sections 178 and 179 are inapplicable to the case at hand. He submitted that the claimant having been summarily dismissed cannot have recourse to any of the two sections as he is no longer in service. He relied on the case of Shaks v. Chief of Air Staff & Anor [2018] LPELR-45277 CA. He submitted further that the claimant can only have recourse to section 147 of the Armed Forces Act. He submitted further that the said provision will even not avail the claimant as his action is already statute barred as the provision of the section cannot stop the time running of section 2 of the POPA. He urged the Court to discountenance the response of the claimant and uphold the preliminary objection.

10. Equally, the 4th, 5th and 7th defendant filed a Notice of Preliminary Objection challenging the jurisdiction of this Court to entertain this action on the following grounds;

1. The claimant/respondent has not disclosed any cause of action against the 4th, 5th and 7th defendants/Applicants.

2. The 4th, 5th and 7th defendants/ applicants are not necessary parties to the just adjudication of this suit.

11. Two issues were formulated by them in support of their Notice of preliminary objection to wit;

a. Whether given the circumstances and facts of this case, the claimant/respondent have disclosed any cause of action against the 4th, 5th and 7th defendant/Applicants in this suit

b. Whether the 4th, 5th and 7th defendants/Applicants are necessary parties in the just adjudication to this suit.

12. On issue one, Counsel submitted that the recourse should be had to the Claimant’s statement of claim and a careful examination of all the pleadings show there is no paragraph indicting the 4th, 5th and 7th respondent for any wrong done against the claimant. He submitted further that the Court must consider the statement of facts in determining whether the Claimant has a cause of action against them. He submitted finally that the claimant has not disclosed any cause of action against the 4th, 5h and 7th defendants. He relied on the following case; The dictum of Fatayi Williams JSC (as he then was) in C.A. Savage &Ors v. M.O. Uwaecha [1972] 1 NWLR (Pt 1) 25 @ 261; Rinco Const Co Ltd v. Veepee Ind. Ltd [2005] 9 NWLR (Pt 929) 85 @ 99, Paras B-C; Oshoboja v. Amuda [1992] 6NWLR (Pt 250) 704. In respect of issue two, Counsel submitted that the claimant is not supposed to join persons against whom he has no cause of action by the rules of joinder of parties. He submitted that no paragraph of the statement of fact established any wrong against the 4th, 5th and 7th defendants. Learned Counsel urged the Court to hold that the 4th, 5th and 7th defendants are not necessary parties in this action. He relied on the following cases in support of issue two; Peenok Investment v. Hotel Presidential Ltd [1982] 12 SC 5 @ 21-22; Ige v. Farinde [1994] 7-8 SCNJ (Pt 2) 284; Babayeju v. Ashamu [1990] NWLR (Pt 567) 549.

13. Claimant’s Counsel in response to this issues in his reply submitted that the claimant has a reasonable cause of action against the defendants. He submitted that paragraphs 2,4, 31,34,36 and 55 of the statement of facts of the claimant directly links the defendants particularly the 5th and 7th defendant to the claimant’s action. He submitted that by so doing the claimant has a reasonable cause of action against them. He relied on the following authorities; Bello v. AG. Oyo State [1986] 5 NWLR (Pt 45) 828; Victor v FUTA [2015] 4 NWLR (Pt 1448) 13 ; J &J Techno (Nig) Ltd v. YHQS Ltd [2015] 8 NWLR (Pt 1460) @ 7, Ratio 7.; Cookey v. Fombo [2005] 22 NSCQR 411@ 422, Paras D-E; Section 10(1) Armed Forces Act.

14. In response to issue two, claimant’s counsel submitted that the 4th, 5th and 7th defendant are necessary parties in the adjudication of this suit. He relied on the cases of Anabaraonye v. Nwakaihe [1997] 1 NWLR (Pt 482) 374 @381; Usman v. Lawal [2010] 18 WRN 105, Ratio 2. He submitted that in the light of the above cases and the claimant’s statement of facts, the 4th, 5th and 7th defendants are necessary parties who have interest in the matter and without which a final judgment cannot be made. He cited in support, Section 7 (1) of the Armed Forces Act. He urged the Court to dismiss the preliminary objection of the 4th, 5th and 7th defendant.

15. The 6th defendant equally filed a Notice of Preliminary objection challenging the jurisdiction of this honourable Court to entertain this case on the following grounds;

a. There is no cause or reasonable cause of action against the 6th defendant

b. The suit is a misjoinder of parties.

In support of issue one, Counsel submitted that the claimant has not disclosed any cause of action against the 6th defendant. It is his submission that the claimant has not disclosed how the 6th defendant wronged him personally. Learned Counsel submitted that the Court in determining whether the claimant has a cause of action against the 6th defendant must restrict itself to the statement of claim/ facts. He submitted that the complaint and the statement of facts establishing the cause of action has not disclosed any wrongdoing on the part of the 6th defendant. In support of this issue, learned Counsel relied on the following cases; SPDC (Nig) Ltd v. X.M Fed Ltd [2006] 16 NWLR (Pt 1004) 189 @ 200 Paras E-A; Igbokwe v. Kehinde [2008] 2 NWLR (Pt 1072) 441@45, Paras E-F, CA; Thomas v. Olufosoye [1986] 1 NWLR (Pt 18) 669 @682 Paras C-E; Ikenne Local Govt v. W.A.P.C Plc [2011] 12 NWLR (Pt 1261) 223 @251, Para G; 7Up Bottling Co Ltd v. Abiola & Sons [2001] 13 NWLR (Pt 730) 469 @ 495, Paras C-F.

16. Respecting issue two, Counsel submitted that only a necessary party in whose absence a cause of action cannot be completely settled can be joined in the action. He submitted that the 6th defendant is not a necessary and proper party and his presence can be dispensed with. Counsel submitted that the joining of the 6th defendant amounts to a misjoinder. It is his submission that the 6th defendant is not in anywhere mentioned in the complaint or Statement of Facts and that none of the acts alleged were done by the 6th defendant. He submitted further that the natural action is the name of such party to be struck out upon an application made by the party. He urged the Court to strike out the name of the 6th defendant. In support of this issue, Counsel relied on the following cases; Daar Comm (Nig) Ltd v. W. D. (Nig) Ltd [2012] 3NWLR Pt 1287 370@ 383 Paras B-F, CA; Ntoe Archibongishie 22 NSQR 780 @ 804-805, Paras E-B, SC; Archibong Umo Udo v. Cross River State Newspaper Corp & Anor [2001] 14 NWLR (Pt 732) 116 @162; Valance v. Birmigham Land Corporation [1876] 2 CL D 369. Learned Counsel urged the Court to grant the application of the 6th defendant .

17. Parties in this suit, adopted and consented to the argument on record procedure pursuant to Order 38 Rule 33 of NIC Rules 2017. It is consequent upon this that the claimant filed and adopted his final written address first wherein two issues were formulated;

1. Whether this honourable Court has jurisdiction to entertain this suit as presently constituted

2. Whether having regards to the entire circumstances of this suit, the claimant has proved his case against the defendants as required by law.

On issue one, Learned Counsel for the claimant submitted that this court has jurisdiction to entertain this matter. He cited the cases of Ecobank (Nig) Plc v. Intercontinental Bank Plc [2012] 5 NWLR (Pt 1293), 223-225, Ratio 5; Abdulraheem v. Oloruntoba-Oju [2007] 2 WRN, 28. It is submission that though Section 2 of the POPA protects Public Officers, it does not however protect them against acts done without lawful justification. He relied on the case of Ofobochie v. Ogoja Local Govt [2001] 16 NWLR (Pt 739) 458. He submitted that the commanding officer have acted outside his powers to award punishment and the claimant being dissatisfied took the appropriate steps under the Act as evidenced by the several petitions pleaded in the pleadings of the claimant and frontloaded. He submitted that the claimant’s action cannot be statute barred having complied with the provisions of Armed Forces Act. He submitted further that the claimant’s complaint was extended to the Minister of defences and Armed Forces Council. He submitted that the claimant in accordance with Sections 178 and 179 of the Armed Forces Act has only been trying to exhaust administrative remedies before filing this suit. As such, should not be penalized for following the due process of law. He urged the Court to resolve issue one in favour of the claimant.

18. In respect of issue two, Counsel submitted that it is not in doubt that the claimant was a soldier under the employment of the defendants or that his employment was of statutory flavor or that disciplinary procedures are regulated by the Act. He submitted that the claimant was charged for the two offences in the charge sheet as a result of the death of deceased Joseph Aboh. It is his submission that the exhibit tendered by the claimant shows the real cause of death of the deceased to be enteric fever and Septecemia. He submitted further that the summary trial of the claimant by the Commanding officer was defective as no witnesses were called or were record of proceedings taken as required under Rule 20 of the RPA (Rules of Practice and Procedure (Army)) in consistence with Section 36 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Learned Counsel submitted by the provisions od Sections 103 and 104 of the Act provisions under which the claimant was charged, the offences can only be tried by a Court Martial and so the offences were not summarily triable. He submitted further that such offences are not punishable by dismissal from service as they are minor offences. He submitted that the employment of the claimant being a statutory one must be terminated in accordance with the provision of the law. He cited in support the following cases; Ogbaje v. Abuja Investment and Ppty Dev. Co Ltd [2007] LPELR-11855 (CA),P 41, Paras D-F; Comptroller General of Customs v. Gusau [2017] 18 NWLR (Pt 1598) 353 @ 387-388, Paras H-A; Okereke v. Yar’adua [2008] 12 NWLR (Pt 1100) 95 @127, Para E. Learned Counsel urged the Court to grant the reliefs of the claimant.

19. The Learned Counsel on behalf of the 1st-3rd defendants equally filed their final written address wherein he formulated two issues to wit;

1. Whether the claimant suit filed before this honourable Court on 24th February, 2020 and as constituted is not statute barred and incompetent?

2. Whether from the evidence before this honourable Court, the claimant has successfully proved that his summary trial and consequential dismissal from the Nigerian Army on the 20th, September, 2007 was not in accordance with the applicable statute?

In respect of issue one, counsel adopted the arguments in support of the notice of preliminary objection. However, Counsel addressed the issue raised by the claimant in his final written address that the act of the defendant is malevolent, in bad faith and without legal justification and so not protected by the POPA. He submitted that this submission of the claimant’s counsel id misconceived and an afterthought having not been raise in the claimant’s response to the preliminary objection. He submitted that section 116 (1) (b) empowers the battalion commander to summarily try the claimant and award punishment. He submitted that the claimant cannot just allege malevolence or bad faith, it has to be proved by him.

20. In respect of issue two, learned Counsel submitted that from the evidence before the Court, the summary trial of the claimant was in accordance with the law. He submitted that the claimant has the evidential burden to prove the terms of his contract and prove his assertions. He cited in support, the cases of ; Morohunfola v. Kwara State College of Technology [1990] LPELR-1912 (SC),p16, Paras A-C; Borishade v. Nigeria Bank of Nigeria Ltd [2005] LPELR-11968 (CA)p 44, Paras D-F; Mrs Vidah C. Ohochukwu v. Attorney General of Rivers State & Ors [2012] LPELR-7849 (SC),p 37, Paras D-E. He submitted that the pleadings of the claimant and evidence before the Court falls short of this. He submitted that documentary evidence before the Court has shown that the allegations against the claimant was investigated and witnesses called against him contrary to his assertion. He submitted that all the documentary evidence tendered by the defendants in this suit speak for themselves. He cited in support the case of Onoja Sai’id Emeje v. Ihiabe Abdul Positive & Ors [2008] LPELR 4102 (CA). According to Counsel, these documents speak for themselves and establish that due process was followed in the trial of the claimant. Counsel submitted that the charge sheets and all other documents tendered showed that due process was followed in the summary trial of the defendant. Learned Counsel submitted further that the Commanding Officer has the power to try certain offences summarily and in line with the provisions of Section 124 (2),(5) and (6) of the Act. He submitted that the Commanding Officer has powers to summarily try the two offences for which the claimant was charged. He submitted that the Commanding Officer has powers under the provisions of section 124 (5) to determine the guilt of the accused and award punishment. He submitted that the summary trial, conviction and consequential dismissal is within the disciplinary powers of the Commanding Officer. Counsel submitted that the said dismissal having been shown by the exhibits before the Court to be substantially regular, it enjoys the legal presumption of validity until the contrary is shown. He relied on the case of Jerome Akpan & Ors v. State [2002] 12 NWLR (Pt 780) 149 @ 202, Paras A-B; Uchenna v Nwachukwu v. State [2002] 12 NWLR (Pt 782) 542 @ 565, Paras A-B. Learned Counsel submitted that by preponderance of evidence, the summary trial of the claimant accords with laid down procedure and as such valid. Learned Counsel urged the Court to dismiss the claim of the claimant and award substantial coat in favour of the defendants.

21. In the same vein, the Counsel for the 4th, 5th and 7th defendants filed their final written address wherein a sole issue was formulated to wit; whether given the facts and circumstances of this case, the claimant has proved his case against the 4th, 5th and 7th defendants to be entitled to judgment in this case? In respect of this sole issue, Learned Counsel submitted that the claimant in the instant suit was afforded the opportunity to defend himself after which he was found culpable, as such, he cannot complain of fair hearing. He relied on Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt 928) 650; AR Momoh v CBN [2007] 14 NWLR (Pt 1055) 508. Learned Counsel submitted that the claimant having been tried and found guilty can only complain to the appropriate superior authority as provided for in sections 128 (1) and 147 (2) & (4) of the AFA. Counsel submitted that the petition to the 7th defendant is insignificant as he is not the appropriate superior authority under the Act. Learned Counsel urged the Court to uphold the Notice of Preliminary objection filed; hold that the claimant have failed to disclose any cause of action against the defendants; the defendants are improper parties, and dismiss the case of the claimant.

22. The 6th defendant equally filed his final written address. Wherein three issues were formulated to wit;

1. Whether considering when the cause of action arose, the case is not statute barred

2. Whether there is any cause or reasonable cause of action disclosed by the plaintiff against the 6th defendant in this suit?

3. Whether considering the facts and circumstances of this case, the complainant has proved his case to be entitled to the reliefs sought.

On issue one, Counsel submitted that the case of the claimant having been filed outside the period of limitation of twelve years is statute barred. He relied on the case of Anwadike v. Admin General of Anambra State [1996] 7 NWLR (Pt 460) 315 @ 319. He submitted that the period of limitation is only exempted in action by beneficiaries or by persons for account of estate money. Counsel submitted that the case of the claimant having not fallen within any of the categories is statute barred.

23. On issue two, Counsel submitted that there is no cause of action against the 6th defendant. It his Counsel’s submission that the claimant has not disclosed any cause of action against the 6th defendant. He relied on the case of Igbokwe v. Kehinde [2008] 2 NWLR (Pt 1072) 441 @ 451, Paras E-F. Learned Counsel submitted that the case of the claimant has not disclosed any wrongdoing against the 6th defendant and the Court in determining whether the suit discloses a cause of action or not should restrict itself to the claimant’s processes. He cited in support, the case of Ikenne Local Govt’s case supra. Counsel submitted that only actions against the Federal Government or State will necessitate suing the Attorney General of the Federation or of the State, the Nigerian Army is a creation of the law and so can be sued in its name. He relied on the case of AG, Abia State v. AG Federation [2007] All FWLR (Pt 362] 1818 SC. Learned Counsel urged the Court to strike out the name of the 6th defendant in the interest of justice as there is no cause of action against it.

24. On issue three, learned Counsel submitted that for a plaintiff to succeed in a civil case, he must establish same on the balance of probabilities and the Court needs to weigh the evidence on the balance of probabilities. He relied on Section 131 91) Evidence Act, 2011 and the case of Arowolo v. Fabiyi [2009] 9 NSCQR 335 @338. Counsel submitted a plaintiff who has not discharged this burden does not serve judgment as the success of his case depends on the strength of his case and not on the weakness of the defence. He submitted that the claimant is not entitled to the reliefs sought as he has not proven his case. Counsel urged the Court to refuse the claimant’s case for being vexatious or in the alternative strike out the name of the 6th defendant as no cause of action has been disclosed against him.

25. After a careful consideration of the Originating Processes filed by the Claimant in this suit vis a vis the Defendant’s Notice of Preliminary objection and the Affidavit in support together with the Claimant’s Counter Affidavit and the submissions of all Counsel, it is in my humble view that the two issues for the just determination of this Court will be;

1. Whether or not this Court is clothed with jurisdiction to entertain this action

2. Whether the Claimant is entitled to the reliefs sought

26. It is the main contention of the 1st- 3rd defendants that the case of the Claimant is not one which the Court has the requisite jurisdiction to entertain as it is statute barred. It is equally the 5th and 7th Defendants’ contention that the Claimant respondent has not disclosed any reasonable cause of action against the 5th and 7th defendant and that the 5th and 7th defendants are not necessary parties to the just adjudication of this suit. The 6th defendant equally contended vide his notice of preliminary objection that the Claimant does not have reasonable cause of action against the 6th defendant and this suit is a misjoinder of parties. The Claimant responded to each of the notice of the preliminary objection of the defendants.

27. Basically, the crux of the Notices of preliminary objection filed by the 1st, 2nd, 3rd, 5th, 6th and 7th defendants is that this Court lacks jurisdiction to entertain this matter as the case of the Claimant is statute barred, does not disclose reasonable cause of action and defeated by misjoinder of parties. There is no doubt that the issues raised by the defendants in their Notices of Preliminary objection is one which go to the root of the action as it raises the question of the jurisdiction of this Court to entertain this matter. It is trite that jurisdiction is the bedrock of all legal actions. A proceeding conducted without jurisdiction no matter how beautifully done is nothing but an outright nullity as one cannot put something on nothing and expect such to stand. See the celebrated case of UAC v. MACFOY [1962] 1 AC 100. Jurisdiction is the authority of the court to adjudicate over the questions which gave rise to the cause of action. Jurisdiction is the life blood and bedrock of all trials without which the trial will amount to a nullity. See the following cases; Essien v. Essien [2010] All FWLR (PT523) 1192; Madukolu v. Nkemdilim [1962] 2 All NLR 581.

28. Jurisdiction is a sine qua non in all legal proceedings so much that when raised, the Court has a duty to have it settled first one way or the other before the Court proceeds to the substance of the case. See AG Adamawa State v. AG. Federation [2014] 14 NWLR (Pt. 1428) 570; Okariaka v. Samuel [2013] 7 NWLR (Pt. 1544); Abubakar & Ors v. Nasamu &Ors [2012] 5 SCM 1. Courts are enjoined when faced with cases in this instant to first examine the complaints and the statement of facts as it is called in this Court to determine whether or not it has the vires to adjudicate on the case. Akwa Ibom State University v. Ikpe [2016] 5 NWLR (Pt 1504) 146 @ 162. The 1st, 2nd and 3rd defendants contended that the suit of the Claimant is statute barred having been filed outside the three months as provided for by Section 2 of the Public Officers Protection Act. The Claimant in reply submitted that by the provision of Section 147 (2) of the Armed Forces Act, supra a person who is dissatisfied with the outcome of a summary trial as in the instant case can validly petition the appropriate authority. According to learned Counsel, by the combined effect of Sections 178 and 179 of the Act supra, allows a soldier to make a complaint over any wrong committed against him by his Superior Officer or Commanding Officer in other to exhaust administrative remedies and so should not be penalized for doing so. He submitted that the case of the Claimant is not statute barred.

29. It is clear from the General Form of Complaint and the statement of fact that the claimant who had a contract of service with the Nigerian Army the 1st defendant in this suit was dismissed on the 20th day of September 2007. There were equally series of petitions and letters of appeals written by the Claimant and the other affected person to some relevant authorities. I am aware of the provisions of Section 2 (a) of the Public Officers Protection Act which provides that actions against public officers must be brought within three months after the cause of action arose. The Apex Court in the case of Jafar Sanni Bello v. Abba K. Yusuf & Ors [2019] LPELR-4918 SC held that cause of action arises on the date or from the time the breach of duty occurs which empowers a person adversely affected by the breach or injury therefore to sue in a law Court to assert or protect his legal right that has been violated. In other words, a cause of action arises the very moment a wrong is done to the claimant by another and which entitles the claimant to approach the Court for the protection of his right. See the case of Nwonika v. Ononeze-Madu & Ors [2019] LPELR-46521 SC.

30. It is not in doubt that the 1^st-3^rd defendants are Public officers under the provisions of the law. Be that as it may, I am of the view that the rule created by Section 2 of the Public Officers Protection Act, supra permits certain exceptions which are cases of breach of contract, recovery of land, claims for work and labour done amongst others. See the cases of National Insurance Commission v. Shehu Aminu & Anor [2011] LPELR-19751 CA; Roe Limited v. University of Nigeria [2018] LPELR- 43855 SC, Page 21 Paras D-G. In the same vein, this Court has held in plethora of cases pertaining to labour as in the instant suit that the Public Officers Protection Act POPA is no longer applicable to cases of contract of service. See the decision of this Court in unreported suit no NICN/ABJ/351/2018 Association of Senior Civil Servants of Nigeria (ASCSN) v. National Emergency Management Agency (NEMA) which Ruling was delivered on the 5th day of March, 2020. The Supreme Court in the case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 @ 270-271, Paras F-C per Ariwoola JSC reiterated the position of law thus;

“Ordinarily the purpose of the public officers protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of…

There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construction General, Farsura Cagefar Spa & Anor [1974] All NLR (PT. 2) 463; Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (PT. 1038) 66; [2007] 3 SC (PT. 1) 131; [2007] 6 SCM 145; [2007] LPELR-2817.” [Underlining mine].

31. Again in the recent decision in CIL Risk & Asset Management Ltd v. Ekiti State Govt. & Ors [2020] LPELR-The Apex Court reiterated the position of the law that POPA and limitation Act do not apply to any case bordering on breach of contract. The claimant’s case is respecting breach of his contract of employment with the defendants hence this suit. It is as a result of the foregoing that I maintain the respectful view that the case of the claimant is not statute barred for non compliance with the provisions of Section 2 of the Public Officers Protection Act. This is because the Claimant as disclosed from the facts pleaded is a statutory employee under the contract of service. This action is therefore not statute barred. I find no merit in the notice of the preliminary objection of the 1-3^rd defendants, it is thus dismissed.

32. It is equally the 6th defendant’s contention in their final written address that the case of the claimant is statute barred having been filed outside the limitation period. By the provision of Section 147 of the Armed Forces Act, where a charge has been dealt with summarily, a petition may be submitted within one month of the finding or award by the person convicted. The appropriate authority shall if it thinks fit review the award. It then means that the punishment awarded may not be final if the person convicted petitions for review or redress. The finality of the decision will depend on the outcome of the petition of a convicted person for review. The Claimant vide paragraph 26 of the statement of facts pleaded the letter written on the 3rd day of October, 2007 as a petition against his dismissal to the Chief of Army Staff. According to him in his pleadings, several reminder letters followed and to which he and his co dismissed colleague received a reply on the 1st day of September, 2009 from the chief of Army Staff stating that the findings of guilt and dismissal has been upheld. The Chief of Army Staff being a superior authority upheld the findings and award of the summary trial. Again, after subsequent petition and appeals for review, the Claimant’s petition was replied on the 8th day of January 2016, wherein the General Officer Commanding stated that the petition or appeal for redress by the claimant is statute barred. It was further stated in the Letter said thus;

“…I am to add that this letter concludes the issue of redress or review in respect of the mentioned subject.”

33. It is clear from the wordings of the said letter as reproduced above that the issue of petition or appeal for redress was put to rest and concluded by this letter. In the same vein, the defendants in a letter dated 6^th April 2016 demanded the claimant to forward his complaint to the appropriate authority for necessary action. Subsequently, the Chief of Army Staff through one S.B. Ikumapayi (Brigadier General) replied the claimant that the award of the dismissed regiment has been upheld and that the case is deemed closed and cannot be reopened for examination because no new facts have emerged. It was emphasized that due process was followed in the trial and dismissal of the claimant and his colleague, hence the Nigerian Army is functus officio as far as the matter is concerned. Thereby foreclosing the issue of redress on the punishment awarded by the summary trial. The right of the claimant to obtain a redress or review as provided for under Section 147 of the Act was finally addressed by the defendant in the said letter. By necessary implication it then means that the award of the summary trial was not reviewed. In the case of Adhekegba v. Min. of Defence [2013] 17 NWLR (Pt 1382) 153, Para G-A the Court held that;

“where a procedure is provided in a statute, any person aggrieved must exhaust the procedure before proceeding for redress in a court of law for his action to be competent. Conversely, if the procedure for redress is followed, the party cannot be denied access to Court”

34. Applying the above principle, to the instant case, the claimant having followed the statutory requirement for seeking redress, cannot be denied his right to access to the Court. Which right is constitutionally guaranteed under Section 6(6)(b) of the 1999 Constitution. It follows therefrom that the period of limitation will start counting after he has exhausted the administrative remedy and to which he received a final verdict from the defendant on the 19^th day of March, 2018. The crux of the claimant’s case is that his fundamental right to fair hearing was breached by the defendants, which according to him is unconstitutional. Fair hearing is a constitutional right. It is not an ordinary right, as it is a right derived from fundamental law, which is the Constitution and it is therefore important or significant rights the breach of which is seriously viewed by Courts. Fair hearing is one of the pillars of Fundamental rights. It is thus regarded as inalienable, inviolable and indivisible human rights which cannot be infringed without a breach of the fundamental law of the land, id est the 1999 Constitution, which recognizes such rights. See Section 36(1) and (2) of the 1999 Constitution as amended. Which provides thus-

1. “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

2. Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a). provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b). contains no provision making the determination of the administering authority final and conclusive.”

35. It is plain from the highlighted provisions of Section 36(1) and (2) of the 1999 Constitution as amended that this is no doubt a right guaranteed to every citizen of Nigeria including the claimant by the Constitution. It is a right which stands above the ordinary laws of the land, ditto the limitation law. See Badejo v. Minister of Education (1996) 9-10 SCNJ 51 per Kutigi, JSC [Blessed memory]. In the case of El Rufai v. Senate of the National Assembly [2016] I NWLR( PT. 1494) 504 @ 535; where His Lordship Tur J.C.A aptly captured it thus- I am of the humble view that no limitation statute or law, example the Public Officers Protection Act or Law can be invoked by any litigant to cause a Court of law and justice to decline jurisdiction when the cause or matter in controversy involves fundamental or human rights of an aggrieved person..." (Pp. 57-60, paras. A-E). It thus stems from all the above aforesaid and the apt position of the learned Justice of the Court of Appeal in El Rufai’s case supra, that fair hearing being a constitutionally guaranteed right of the claimant cannot be limited by any statue or Act of the National Assembly as the Limitation Act.

36. Section 6(6)(b) of the 1999 Constitution equally guaranteed the right of every citizen of Nigeria to ventilate his grievance in the law Court, this right cannot also be limited by any Limitation Act. In the case of Adhekegba v. Min of Defence, supra,157, Paras B-E, the Court held jurisdiction of the Court cannot be easily wished away. Hence, Courts guard their jurisdiction jealously as the right to access the Court is constitutional. See the case of Adhekegba, supra. It is in consequence of all stated herein before in this judgment that I am of a firm view that this suit cannot and is not limited by statute. I so find and hold.

37. The second leg of the preliminary objections raised by the defendants particularly the 5^th, 6^th and 7th defendants vide their respective objections is that the claimant’s case does not disclose reasonable cause of action against the 5^th, 6^th and 7th defendants respectively. It is the basic principle of law that no action can lie where there is no reasonable cause of action, the absence of reasonable cause of action renders an action incompetent. See the case of Oloriode v. Oyebi [1984] 5 SC 1 @ 28. A cause of action can be defined to mean the facts or fact which establishes or gives rise to a right of action and which is the factual situation which gives a person right to judicial relief(s). See the case of Egbe v. Adefarasin [1987] 1 NWLR (PT 47) 1; Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. [2001]11 NWLR (Pt 725) 689. The question therefore is what is reasonable cause of action? The Supreme Court per Oguntade JSC, in the case of Chevron Nigeria Ltd v. Lonestar Drilling [ 2007] 16 NWLR (Pt 1059) 168; [2007] NGSC 120 observed thus;

However the definition of the words ‘cause of action’ is for the purposes of the present case, incomplete without the meaning of the word or adjective ‘reasonable’ ascertained. In Black’s Law Dictionary, Special deluxe, 5th Edition, the word has been defined to mean ‘fair, proper, just, moderate and suitable under the circumstances. But the phrase ‘reasonable cause of action’ which is used in Order 18 Rule 19 of the English Rules of the Supreme Court (See Volume 1 of the Supreme Court Practice (1979) had been defined in Drummond-Jackson v. British Medical Association & Ors, (1970) 1 WL..R. 688 at p. 696 C by Lord Pearson who observed-

“First there is in paragraph (1)(a) of the rule the expression ‘reasonable cause of action’, to which Lindley M.R. called attention to Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clark Limited (1899) 1 Q. B 86pp. 90-91. No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleadings are considered………….” [Emphasis mine]

See also Chief (Dr) Irene Thomas & Ors v. The Most Reverend Timothy Omotayo Olufosoye (1986) 1 N. W.L.R 669 at p. 682 (per Obaseki JSC)”

38. Flowing from the above, the pertinent question to be asked at this stage is looking at the facts as pleaded by the claimant, can it be said that the case of the claimant does not disclose reasonable cause of action against the 5^th, 6^th and 7th defendants? The 5th defendant is the Chief of Defence Staff while the 7th defendant is the Honourable Minister of Defence. By the provisions of Section 4 (1) of the Armed Forces Act, CAP A20, Laws of the Federation of Nigeria, LFN , 2004 the Chief of Defence Staff the 5th defendant in this suit is a member of the Armed Forces Council . Section 10 (1) of the Armed Forces Act, supra provides that both the 5th and 7th defendants are members of the Army Council and which shall be headed by the 7th defendant as its chairman. Equally, by the provisions of Section 10 (1) of the Armed Forces Act, supra, the Army Council that is the 2nd defendant in this suit shall be responsible under the general authority of the Chief of Defence Staff the 5th defendant for the command, discipline and administration of and for all other matters relating to the Army. The combined effect of Section 10 (1) and (2) is that the Nigerian Army Council that is the 2nd defendant which is headed by the 7th defendant shall be responsible for the command, discipline and administration of matters relating to the Army through the instrumentality of the 5th defendant. It then means that anyone who is carrying out disciplinary control in the army does so on behalf of the Nigerian Army Council which is headed by the 7th defendant under the general control of the defendants. The Courts have been enjoined to consider the statement of claim or facts as in the instant case to determine whether there is a reasonable cause of action. The Claimant vide his originating process had stated that he was a soldier in the Nigerian Army and was dismissed from service without following the due process of law. It is clear that the Statement of claim of the claimant discloses some questions fit for determination against the Nigerian Army by this Court It is sufficient for a Court to hold that a cause of action is reasonable once the Statement of Claim in a case discloses some cause of action or some questions fit to be decided by a Judge. See the dictum of Uwais JSC at page 134 in the case of Attorney General of the Federation v. Attorney General of Abia State & 35 Ors, supra.. In view of the foregoing, I am of the firm view that there are some questions to be determined by this Court against the 5th and 7th defendant I find that there is a reasonable cause of action against the 5th and 7th defendants in this suit. I so find and hold.

39. The 6th defendant in this suit is the office of the Attorney General of the Federation. The Attorney General of the Federation is no doubt the Chief Law Officer of the Federation. See Section 150 (1) of the 1999 Constitution of the Federal Republic of Nigeria CFRN (as amended). It is a well-established principle that the office of the Attorney General can be sued as defendant in civil actions in which a claim can be properly made against the Federal Government or any of its agencies. See the case of Ezomo v. Attorney General, Bendel State [1986] 4NWLR (Pt 36) 448; Federal Airport Authority of Nigeria v. Bi-Courtney Ltd & Anor. (2011) LPELR. See also Igwegbe v. Anselem & Ors [2017] LPELR-42681CA. It is in the light of this that I find and hold that there is a reasonable cause of action against the 6th defendant in this suit. I so find and hold.

40. The 3rd issue raised by the preliminary objections is the misjoinder of parties. In the case of Fawehinmi v. NBA (No 1) [1989] 2 NWLR (Pt 105) 494 @ 550, Oputa JSC (of blessed memory) defined who a party is “a party to an action is a person whose name is designated on record as Plaintiff or Defendant”. The 5th and 7th defendants contended that they ought not be made a party because they are not necessary parties to this suit. It is trite that for a party to be a necessary party in a suit, the presence of such party must be essential for the effectual and complete determination of the issues/ complained in the suit. See the locus classicus case of Green v Green [1987] 3 NWLR (Pt 61) 480 at 493. See also Commercial Bank (Credit Lyonnaise Nig Ltd) v. Mrs Rose Okolie & Ors [2009] 5 NWLR (Pt. 1135) 446. I am of the view that the case of the Claimant may be decided in the absence of the 5th and 7th defendant however, they may still be made parties for some good reasons. In the case of U.O.O Nigeria Plc v Okafor & 13 Ors [2020] LPELR-49570 (SC), the Supreme Court relying on its decision in the case of UTTIH v. Onoyivwe [1991] 1 NWLR (Pt 166) 166 SC, held that before Court can validly exercise jurisdiction to hear and determine an action on its merits, the parties must be shown to be proper parties to whom rights and obligations arising from the cause of action can attach. A proper party is one who though may not be interested in the suit but is nonetheless made a party for some good reasons. According to the Court in the case of UOO Nig Plc v Okafor, supra, the Court has to look at the Claimant’s claim to determine whether a party is a proper party or not. I have held that the Claimant going by his claim and statement of facts have a reasonable cause of action against the 5th and 7th defendants. This alone justifies their joinder in the suit as defendants. It follows therefrom that they are proper parties before the Court although they may not be necessary parties. It is in the light of this that I find and hold that the 5th and 7th defendants are validly made parties before this Court. I so find and hold.

41. The 6th defendant in the instant suit, is the office of the Attorney General of the Federation as I have stated earlier that the office of the Attorney General can be sued in any action involving the Federal Government or any of its authorized agencies. The Nigerian Army is an agency of the Federal Government. In such instance, the Attorney General although not directly interested in the case may be joined as a nominal/proper party. It is view of this that I find that the 6th defendant may be made a party to this suit by virtue of his office.

42. Assuming the 5th, 6th and 7th defendants are mis joined in this suit as contended by them, the misjoinder will none the less not affect the validity of this suit. Order 13 Rules 14(1) and (2) of the National Industrial Court Rules, 2017 is to the effect that;

No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.”

It is on a ferma terra that misjoinder of parties does not affect a case. See the case of AG Rivers State v. AG Akwa Ibom State [2011] All FWLR (Pt 579) 1023 @1096; Nnaji v. Nigeria Football Association [2011] All FWLR (Pt 559) 1195.

43. On issue two, it is trite that for a Claimant in declaratory relief to be entitled to reliefs sought, he must rely on the strength of his own case and not on the weakness of the defendants’. See the cases of Edosa & Anor v. Ogiemwanre [2018] LPELR- 46341 (SC); Fasikun II v. Oluronke II [1994] (Pt 589). It is important I point out here that the 4^th defendant did not file statement of defence in this suit. The 6^th defendant on the other hand did not tender any exhibit but placed reliance on the documents filed by other defendants. It is the case of the Claimant that he was employed by Nigerian Army, he pleaded his employment notice. The 1^st-3^rd defendant did not challenge or controvert the content of the said employment notice of the Claimant which was pleaded and tendered by the Claimant. Although the admissibility of the said document was not challenged by the defendants, I am aware of the provisions of the Evidence Act 2011 which provides for certification of photocopy of public documents category of which the said notice falls being record of Acts of the Nigerian Army. It is now established that this Court has power to depart from the provisions of the Evidence Act in order to do substantial justice. See Section 12 (2) (b) of the National Industrial Court Act, 2006. The employment notice is the fulcrum of the Claimant’s claim and the basis of his right to bring this action. It is in the interest of justice of this case that this document be admitted. The said provision makes admissible, the said notice of employment in the interest of justice. In the same vein, Section 3 of the Evidence Act, supra provides that nothing in the Evidence Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria. The National Industrial Court Act is a law validly in force in Nigeria. It is in the light of the foregoing that I admit the said notice of employment of the Claimant.

44. The 1^st -3^rd defendants denied vide paragraph 3 of the statement of defence that the Claimant was its employee who was transferred to 1 battalion, Birnin Kebbi, Kebbi State and put him to the strictest proof. The same 1^st-3^rd defendants vide paragraph 4 of their Statement of defence however admitted that the Claimant was dismissed from service on the 20^th day of September, 2007 while he was serving at 1 Battalion, Birnin-Kebbi, Kebbi State at the time of his dismissal. Paragraph 4 of the Statement of defence of the 1^st-3^rd defendants in my mind, is a clear admission that the Claimant was at one time the employee of the 1^st defendant who was at the time of his dismissal serving at 1. Battalion, Birnin-Kebbi, Kebbi State. Equally, the 5^th and 7^th defendants vide paragraph 2 of their Statement of defence put the Claimant to strictest proof of his claim that he was employed by the Nigerian Army and was serving at 1 Battalion, Birni-Kebbi, Kebbi State before his dismissal. However, they stated in the concluding part of paragraph 3 of their statement of defence that the Claimant was lawfully dismissed with laid down procedure. If I may ask how did they come to that conclusion if they do not know the claimant? It is obvious by the pleadings of the 5^th and 7^th that they know the claimant and agreed that he was at some point before his dismissal in the employment of the Nigerian Army. It is only logical, as there cannot be a dismissal without a prior employment. The above is clearly an admission of the fact that the Claimant was in the employment of the Nigerian Army before the dismissal and thus he was an employee of the Nigeria Army. It is trite that facts admitted needs no further proof. See Section 123 of the Evidence Act and the case of Baalo v. Federal Republic of Nigeria [2016] LPELR-40500 (SC). It is in the light of the above and the fact that the employment notice of the claimant was not challenged that I find and hold that the Claimant was an employee of the Nigerian Army at the time of his dismissal. I so find and hold.

45. It is the Claimant’s case that he was wrongfully dismissed from the services of the 1^st defendant on the 20^th day of September, 2007. According to him, he was at the time of his unlawful dismissal serving as a soldier with 1 Battalion Birnin-Kebbi, Kebbi State. It is his claim that he had no hands in the circumstances leading to his trial. The Claimant vide paragraphs 12-18 of the Statement of facts contended that he and the co dismissed officer had no hands in the death of one Mr Joseph Aboh. This fact was equally deposed by the Claimant, CW1 and his co dismissed officer, the CW2 in their respective testimonies before the Court. The 1^st- 3^rd defendants contended that the Claimant and the co dismissed officer who is the CW2 in this case were the ones who murdered one deceased Joseph Aboh. In support of this contention, the 1^st-3^rd defendants pleaded and tendered amongst other things a certified true copy of a letter dated 29^th September, 2007 communicating the outcome of the summary trial of the claimant to the appropriate authority. The said document alleged that the Claimant and the CW2 were responsible for the death of the said deceased Joseph Aboh. Hereunder reproduced is the relevant portion of the document;

5. The duty RP Lcpl Haruna Lawal and Lcpl Umar undoubtedly connived to inflict injuries and torture the deceased which led to his death. Therefore, it was established that Lcpl Abdul Umar and his accomplice, Lcpl Haruna Lawal killed and moved the deceased corpse a distance away from Lcpl Abdul Umar’s frontage in order to conceal their act of murder. This was definitely an attempt to deceive the authority and avoid suspicion of them being responsible for the act. They were therefore found culpable for the murder of Mr Joseph Aboh. The deceased corpse was later conveyed to the mortuary at Sir Yahaya Memorial Hospital, Birnin Kebbi on the same day. Consequently, Lcpl Abdul Umar was charged for Assault and Conduct to prejudice of Service Discipline……..”[Emphasis mine]

46. Although, the Claimant was charged for assault, it is clear from the charge that the Claimant was charged for assault causing death. Hereunder reproduced is the relevant portion of the Charge sheets of the Claimant NA FORM B 252 as tendered by the 1-3^rd defendants.

A. “Statement of offence: CONDUCT TO PREJUDICE OF SVC DISCIPLINE

Punishable under section 103 (1) of the ARMED FORCES ACT CAP A20 LAWS OF THE FEDERATION OF NIGERIA 2004.

B. Particulars of offence: IN THAT HE AT 1 BN DUKKU BARRACKS ON OR ABOUT 2403300A JULY 07 FAILED TO REPORT THE DEATH OF A CIVILIAN, MR JOSEPH, ABOH AN INCIDENT WHICH OCCURRED IN HIS ATTEMPT TO FORCEFULLY CARRY THE CIVILIAN TO THE GUARD ROOM KNOWING FULLY WELL IT IS AN OFFENCE TO DO SO.”

B. “Statement of offence: ASSAULT

Punishable under section 104 (1) of ARMED FORCES ACT CAP A 20 LAWS OF THE FEDERATION OF NIGERIA 2004.

A. Particulars of offence : IN THAT HE AT 1 BN ADMIN COY CBQ BLOCK 86 FLAT 5 ON OR ABOUT 240300A JUL 07 IN HIS ATTEMPT TO FORCEFULLY CARRY MR JOSEPH ABOH TO THE GD ROOM, WAS SAID TO HAVE ASSAULTED HIM WHICH ALLEGEDLY LED TO HIS DEATH.”

47. It is effulgent from the letter dated 29^th September, 2007 and the two charge sheets used in trying the claimant that his trial is one tied to the death of a civilian, one Mr Joseph Aboh. From the above captured portion of the said charge document, it is clear that the Claimant was alleged to be the one responsible for the death of the deceased Joseph Aboh. It is in view of the peculiar nature and circumstances of this case that I find it expedient to consider whether or not the Claimant’s action actually caused the death of the deceased or murdered the deceased as alleged by the defendants, as that was the basis of his trial leading to his eventual dismissal the crux of this suit. It is trite that where murder is in issue like in the instant case, it must be proved that the death of the victim was as a result of the act or omission or intentional act or omission of the accused. It must be proved that the act or omission of the accused caused the death of the victim not that it could have caused. See the case of Madu v. State [2012] 15 NWLR (Pt 1324) 405 @ 443. The Court has held that medical certificate proving cause of death will not be needed where cause of death was obvious. Such situations arise where death was instantaneous or nearly so. See the case of Jeremiah v. State [2012] 14 NWLR (Pt 1320) 248, 274, Para G. Can death in this instance be said to be instantaneous or obvious given the time within which the Claimant was last seen with the deceased and the time when the corpse of the deceased was found? The answer is obviously in the negative. It is only expedient that the cause of death should have been ascertained before the Claimant could be said to be the murderer of the deceased.

48. The Claimant vide paragraph 25 of his statement of fact averred that the cause of death of the said Joseph Aboh was enteric fever and Septicemia as the secondary cause and he pleaded a photocopy of the medical certificate of death of the said Joseph Aboh. The Claimant gave the 3^rd defendant notice to produce same. The 1^st-3^rd defendant denied paragraph 25 of the Claimant’s Statement of Facts vide paragraph 12 of their statement of defence and put him to strictest proof. The 5^th and 7^th defendants equally denied same and put him to strictest proof vide paragraph 8 of their statement of defence. It is trite that one of the ways of establishing cause of death is by production of medical certificate. The law is of common place that a Claimant in order to succeed had to adduce evidence in support of any averment in his statement of claim/ fact which was not admitted by the defendant otherwise such averment would be deemed abandoned. Evidence is required to prove averments not admitted because the onus of proving particular facts is on the party who asserts it. The onus does not remain static but shifts from one side to the other side. See the case of Egbunike & Anor v. African Continental Bank Ltd [1995] 2 NWLR (Pt 375) 34- 340. The Claimant in support of his assertion tendered a photocopy of the Certificate of death of the said Joseph Aboh and put the 3^rd defendant on notice to produce same. The defendant failed to produce the said document. This to my mind is intentional because the defendant knows that tendering same would not be favorable to them, hence they failed to produce same. It is a well settled principle of law that evidence which could be produced but not produced is deemed unfavorable to the party withholding it. See Section 167 (d) of the Evidence Act, supra. See also the case of UBA Plc. v. Ogochukwu [2014] LPELR-24267. I do not also lose sight of the hospital that issued the said medical certificate and date on same. A perusal of document tendered by the 1-3^rd defendants letter shows that it was issued by “Sir Yahaya Memorial Hospital” PMB 1006, B/Kebbi, Kebbi State. It is noteworthy that this same hospital was the one mentioned in the document dated 29^th September, 2007 communicating the outcome of the summary trial of the claimant to the appropriate authority which I have earlier highlighted at paragraph 43 in this judgment. Hereunder reproduced is the relevant portion recaptured thus;

The deceased corpse was later conveyed to the mortuary at Sir Yahaya Memorial Hospital, Birnin Kebbi on the same day …..”[Emphasis mine]

49. I also bear in mind the fact that the content of the said exhibit or its admissibility was never controverted or challenged by any of the defendants. It is well established that evidence which is unchallenged and uncontradicted, if credible, ought to be accepted as there is nothing on the other side to balance it. Further, if the evidence led on the facts pleaded is admissible, relevant, uncontradicted and not discredited, a Court can legally rely and act on it. By Nigerian Army Council & Anor v. Erhabor [2018] LPELR-44958CA; It is also an established principle of law that, a Court is entitled to accept and/or act upon unchallenged and uncontroverted evidence. See also the case of Egbunike & Anor v. African Continental Bank Ltd, supra. It is as a result of this and the reasons earlier given that I admit and accept the said medical certificate as evidence in proof of the cause of death of the deceased. I so hold. It is clear on the face of the document that the cause of death of the deceased is Septecemia and enteric fever which I understand to be pathological diseases vide Oxford Advance Learner’s Dictionary 7^TH Edition, at page 1332, as infection of the blood by harmful bacteria,, enteric means it is connected with the intestine. The import of which is that cause of death is an infection of the blood of the deceased and connected with his intestine.

50. It is the contention of the Claimant that the summary trial leading to his dismissal was defective as it was devoid of any legal or statutorily sanction standard and requirements of modern trial. It is hornbook law that parties are bound by the terms of their contract and the duty of the Court is to interpret the terms of the contract to reflect the intention of the parties to the same. See the case of Sahara Energy Resources Ltd v. Olawumi Oyebola [2020] LPELR-51806 (CA). What then is the term of contract of someone in the Claimant’s category? It is trite that a person subject to service law shall be governed by the provisions of the Armed Forces Act. A person subject to service law is a person in the Armed Forces of Nigeria that is the Army, Navy, or Air force. See the case of Ahmed v. Nigerian Army [2016]17 NWLR (Pt 1540) 60, Para A. In the instant case, the Claimant was a Lance Corporal in the Nigerian Army with Number 95NA/39/2650. I find that he was subject to service law and therefore governed by the provision of Armed Forces Act. It follows therefrom that the terms of the contract of the Claimant is as contained in the Armed Forces Act. It is against this backdrop that I will now consider the framework for the summary trial as contained in the Armed Forces Act [Hereafter called the Act], to ascertain if the procedure adopted in claimant’s trial was in accordance with the law regulating his employment.

51. The rank structure of those who are subject to service laws are contained in the 3rd and 4^th Schedules to the Act. The rank structure of officers is contained in the 3^rd Schedule while that of soldier, rating and aircraftmen are contained in the 4^th schedule. By the provisions of Section 291 of the Act, an officer is one above the rank of cadet or any superior rank. The Claimant in this suit is a Lance Corporal as such he is below the rank of a cadet. It then means that it’s the provision of the 4^th Schedule that applies to him. The Claimant worked with the Nigerian Army. The rank structure of those in the Army is as reproduced hereunder;

Army

1. No equivalent

2. Warrant officer Class I

3. Warrant officer Class II

4. Staff Sergeant

5. Sergeant

6. Corporal

7. Lance-corporal

8. Private

9. Recruit.

52. It is clear from the above that the claimant is the 7^th on the scale of rank structure. The summary trial procedure is governed by the provisions of Sections 115-117 and 121-128 of the Act. It is trite that when a Court is to interpret the provisions of a statute, where the words used are clear and unambiguous they should be assigned their natural meanings. See the case of Eze v. Unijos [2021] 2 NWLR (Pt 1760), 226, Para H. By the provisions of Section 116 of the Act a warrant or petty officer, noncommissioned officer, soldier or rating or aircraftman who is charged with an offence may be summarily tried under Part XVI of the Act and the trial and punishment should be to the extent permitted by the law by the officer in command of the unit to which the soldier or other corresponding ranks belong. Section 116(1) (a) provides that a commanding officer of the company or his equivalent can summarily try an accused who is below the rank of a sergeant or corresponding rank. Equally, Section 116 (1)(b) provides that where the accused is below the rank of warrant officer class one or chief petty officer, the battalion commander or his equivalent may summarily try him and award punishments stated therein where found culpable. While Section 116 (1) (c) provides that where the accused is below the rank of warrant officer class one or chief petty officer, the brigade commander or his equivalent may try him and award the punishments provided therein where found culpable. In my candid opinion, the words used by the said Section are clear and unambiguous and as such must be given their natural and ordinary meaning. By the provision of Section 116 (1) (a) commanding officer of the company or his equivalent can try summarily where the accused is below the rank of sergeant or corresponding rank. The Claimant in this suit is below the rank of sergeant as he is the 7^th on the ranks structure scale. See the 4^th Schedule to the Act. I so find and hold. By the provisions of section 116(2) of the Act, the punishment given in the preceding subparagraph of (1) is less than that provided in the succeeding subparagraph. This clearly means that severity of the punishment for summary trial is in relation to the rank of the accused.

53. A perusal of the Act shows it provides for the procedure to be followed for investigation of charges and summarily dealing with same. The provisions governing the investigation of and summary dealing with charges are Sections 123-128 of the Act. By the provisions of Section 123 of the Act, before an allegation against a person subject to service laws under the Act is 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. I have held hereinbefore in this judgment that the Claimant in this suit is subject to service laws; it then means that the provisions of this Section applies to him. I so find and hold.

54. Going by the provisions of Section 124 particularly (2), after investigation a charge against a noncommissioned officer, soldier, rating, or air craft men may be dealt with summarily by his commanding officer subject to and in accordance with the provisions of Parts XIV and XIII. Who then is a noncommissioned officer, a soldier or a rating? The interpretation Section of the Act, that is Section 291, defines a soldier, rating or aircraftman to mean a member of the Armed Forces of or below the rank of chief petty officer or equivalent rank and references to them includes references to them and corresponding ranks with any of the services of the Armed Forces. The Claimant who was in the Army and on the Scale provided in the Fourth Schedule is below the rank of Warrant Officer Class I which is an equivalent rank in the Army to the rank of Chief petty officer. It then means that the Claimant is a soldier under the provisions of the Act. I so find and hold.

55. In the same vein, Section 124 (6) provides that the offences in the following Sections shall not be dealt with summarily by a commanding officer; Sections 45, 46, 47, 48, 51, 52, 53, 65, 66, 67, 69, 70, 71, 72, 73, 75, 76, 83, 88, 91, 93 and Sections 95 and 98 in so far they relate to any of the listed Sections. The law is of moment that it is only the Court Martial that has jurisdiction to try these offences. See the case of Ofordum v. Nigerian Army [2015] 1 NWLR (Pt 1439), p 186, Paras C-F. The Claimant in the instant suit was charged under Sections 103 and 104 of the Act. The letter dated 29^th September, 2007 clearly stated that investigations established that the Claimant was guilty of murdering the deceased and subsequently he was charged. However, the Claimant was charged for assault and prejudice of SVC discipline as opposed to what the supposed investigation revealed. One would have thought that the Claimant would be charged for murder. It is evident from the NA FORM B 252 tendered by the 1-3^rd defendants, id est the charge sheet for which the claimant was charged, herein highlighted at paragraph 44 of this judgment that the claimant was charged under Sections 103(1) and 104 (1) of the Act even though the investigation according to the 1^st-3^rd defendants alleged murder. It is the Claimant’s counsel position in his submission that Sections 104 and 103 under which the Claimant was charged provided that only Court Martial can try the matter. Hereunder reproduced is the relevant portion of Sections103 (1) and 104 (1) of the Act respectively viz;

103. A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline is guilty of an offence under this section and liable upon conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

104. A person subject to service law under this Act who, with unlawful force or violence, does or attempts to do any bodily harm to another person is guilty of assault and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

56. In the case of AT Ltd v. ADH Ltd [2007] 15 NWLR (Pt 1056) 118 @ 166-167, the Supreme Court held that when a Court is faced with the question of interpretation of a statute , the entire provisions must be read together as a whole in that related sections must be construed together. Statutory provisions are not meant to be read with narrowness. Where the provisions of a statute are clear and unambiguous, the duty of the Court would simply be to give them their plain and ordinary meaning. See the cases of Tumsah v. FRN [2018] 17 NWLR (Pt 1648)238; INEC v. Nyako [2013] 12 NWLR (Pt 1262) 439. Statutory provisions dealing with same subject matter are to be construed together. See the case of Ishola v.Ajiboye [1994] 7-8 SCNJ (Pt 1) @ 35. Now, Sections 104 and 124 are related. Sections 104 and 124 are similar as they relate to offences. A community reading of Sections 103 (1), 104(1) and Section 124, particularly subsection (6) clearly shows that both Court Martial and a commanding officer can both try prejudice of service discipline and Assault. However, where it is the Court martial that tries, the punishment should be as provided for under Sections 103 and 104. The jurisdiction of the Court Martial to try prejudice of service discipline and assault is not exclusive. The Court martial only has exclusive jurisdiction over offences contained in Section 124 (6). See the case of Ofordum v. Nigerian Army, supra. I do not agree with the Claimant’s Counsel that offences for which the Claimant was charged can only be tried by the Court Martial. However, the offences which the Claimant was eventually charged with as evidenced by the two charge sheets are summarily triable. I so find and hold.

57. In the instant case, the Claimant averred that he was tried by the Commanding Officer. I have perused the exhibits before the Court particularly the Charge sheets used in the trial of the Claimant, found that the Claimant was charged by one LT B BELLO (N/11369) 1 BN before one LT Akingbesote (N/12090) on 13/09/07 the Unit Officer Commanding and who made no findings or recommendation but referred the case to the CO, that is the Commanding Officer one Lt Col. G. J. Nwosu on the 20/9/07. I have equally looked at the letter dated 29 September, 2007 which I have earlier referred to in this judgment and which corroborates the fact that the Claimant appeared before the Commanding officer. It is on this premise that I find that the claimant was rightly brought before the Commanding Officer in line with the provisions of Section 124(2) of the Act. I so hold.

58. Subsequently, where a Commanding Officer or the appropriate authority who has summarily dealt with a charge under the Act, wants to impose punishment it must be in accordance with the provision of Act. See the case of Ofordum v. Nigerian Army, supra p.186-187. It is trite that where an officer has conducted summary trial under the Act, such an officer shall have the powers granted under Section 124 (5) of the Act. See the case of Ofordum v. Nigerian Army, supra, Pg 187, Paras A-B. In that case, the Court of Appeal held that by virtue of Section 124 (5) of the Armed Forces Act, an officer conducting summary trial has the power to do the following;

(a). Dismiss the charge; or

(b) Determine whether the accused is guilty; or

(c) Where the accused is guilty, record a finding of guilty and award punishment; or

(d) Condoning the offence in accordance with the provisions of the Act.

59. The import of the above referenced provision of Section 124(5) of the Act therefore, is that the power of the commanding officer to deal with summary trial is limited to those powers stated in Section 124 (5) of the Act. By the provisions of Section 116 of the Act, a soldier may be tried summarily and punished to the extent permitted and in accordance with the following provisions of the Section by the officer conducting the summary trial. It then means that the Claimant who I have held to be a soldier should be tried and punished in accordance with the provisions of Section 116. By the provisions of Section 116 (1) (2) severity of punishment shall be in accordance with the rank of the soldier. Section 116 (1) (a) provides that where the accused is below the rank of a sergeant, the commanding officer, can only impose one of the punishment stated therein. The claimant in the instant suit was at the time of his summary trial a Lance Corporal. By the provisions of Section 289 and the Fourth schedule to the Act, the claimant is the 7^th on the scale of rank and clearly below the rank of a sergeant which is the 5^th on the scale. It follows therefrom that the provisions of Section 116 (1) (a) applies to the claimant. I reproduce below the provision of section 116 (1) (a) of the Act thus;

(a) Where the accused is below the rank of a sergeant or corresponding rank, the commanding officer of the company or establishment or his equivalent may summarily deal with the charge by either dismissing the case or awarding any of the following punishments, that is-

(i) imprisonment with hard labour not exceeding seven days in the unit guardroom;

(ii) extra duties not exceeding seven days;

(iii) confinement not exceeding seven days;

(iv) where the offence occasioned any expenses, loss or damage, make good the loss by stoppages not exceeding N200;

(v) reprimand;

(vi) admonition.

60. Equally, Section 116 (3) provides that except where expressly provided for, not more than one punishment shall be awarded in summary trial provided that stoppages may be awarded either in addition to or without any other punishment; and reprimand may be awarded in addition to a fine. In the same vein, a soldier sentenced to a term of imprisonment of 35 days or more shall also be sentenced to dismissal from service. This then means that the power of the officer conducting summary trial to dismiss a soldier from service is limited only to where the said soldier has been sentenced to term of imprisonment for 35 days or more. I have earlier held that the claimant is a soldier under the provisions of Section 291 of the Act and the 4^th Schedule to the Act. The combined effect of Section 116 (1) (a) (2) (3) (4), Section 291 and the 4^th schedule to the Act is that the power of the claimant’s commanding officer to dismiss him from service is limited only to when the Claimant had been sentenced to terms of imprisonment for 35 days or more. The claimant in the instant suit contended that the punishment which was meted out to him was in excess of the jurisdiction of the commanding officer. A further perusal of the two charge sheets used in charging the claimant reveal that the commanding officer merely awarded a punishment of “dismissed regiment”. There is nothing on the charge sheets to suggest that the claimant was sentenced to terms of imprisonment for 35 days or more which would mean that the claimant could be dismissed from service. It is equally clear from the face of the certified true copy of the document titled “Discipline of soldiers” dated 20^th, September 2007, the date of the trial of the claimant before the commanding officer, document which was equally pleaded and tendered in evidence by the 1^st-3^rd defendants that the only punishment that was awarded the claimant is “dismissed Regiment” nothing more, nothing less. It is trite that documents speak for themselves. See the case of Onoja Sa’id Emeje v. Ihiabe Abdul Positive & Ors [2008] LPELR-4102 (CA) which was cited by learned counsel to the 1^st-3^rd defendants in his address. One may ask that what of the 49 days detention which the claimant said he was subjected to before trial? There is nothing on record to show that the claimant was detained for the said number of days. I have equally perused all the exhibits tendered by the parties; I find nothing in them to support this assertion of the claimant. Assuming the claim of the claimant to the detention was not even traversed, the 49 days detention of the claimant cannot by any stretch of imagination be the punishment of terms of imprisonment. There is equally nothing on the records before the Court to show that the claimant was sentenced to terms of imprisonment before the sentence of dismissed regiment was passed on him.

61. Section 116 of the Act, has clearly provides for the punishment of an accused person who is tried summarily as stated supra, the import of which is that no person has the power to act beyond those stipulated provisions in that Section. In the case of Saraki v. FRN [2018] 16 NWLR (Pt 1646), pg 469, Para G, the Court held that when a law directs that an act be done in a particular way, unless the act was done in that particular way prescribed, such an act otherwise is illegal. The Commanding Officer awarded a sentence that is not in contemplation or provided for by the enabling Act. The fact that the claimant was rightly brought before the Commanding Officer will not justify or exculpate the defendants from the consequences of non-compliance with the stipulations of the punishment awardable. It is in the light of the foregoing that I find that the punishment awarded the claimant is in excess of the powers of the Commanding officer. Consequent upon which I find that the Commanding Officer’s action ultra vires his power under the Act. I so hold.

62. It is equally the claimant’s contention that he was not given fair hearing in the summary trial. According to him, there was no witness and he was not given a chance to defend himself. According to him vide paragraph 20 of his statement of facts that no investigation was carried out to ascertain the cause of death of the deceased Mr Joseph Aboh and no single witness was called to testify against him. The 1^st-3^rd defendants denied this averment in their pleadings. The 5^th and 7^th defendants denied the averment too in paragraph 12 of their pleadings. The 6^th defendant equally denied this averment vide paragraph 8 of their pleadings. The claimant in the instant case contended that he was not allowed to defend himself. This fact was also reiterated by the evidence of the CW1 (the claimant himself) and the CW2 the co accused in the summary trial. The burden of proof in civil cases is not static; it shifts from time to time. See the case of Owena Mass Transportation Co Ltd v. Okonogbo [2018] LPELR- 45221. Civil cases are decided on the preponderance of evidence. See the case of Sarati v. Bako [2015] LPELR-24739. The claimant has pleaded and supported his pleading by oral evidence vide his written statement on oath and corroborated with CW2’s testimony on oath that he was not given fair hearing because he was not allowed to defend himself. The defendants on the other hand denied this assertion. The 1^st-3^rd defendants particularly stated vide paragraph 22 of their statement of defence that the claimant was afforded fair hearing and fair opportunity to present his case. The onus then shifts to the defendants who are alleging that the trial of the claimant was done in accordance with laid down laws and that he was given fair hearing to prove same.

63. In the recent case of Eze v. Unijos, supra, pg 230, Paras D-F, the Supreme Court held that the standard of fair hearing requires the observance of two pillars of rules of natural justice namely; audi alteram partem- hear the other side; and nemo judex in causa sua- no one should be a judge in his own cause. This is the rule against bias. See also, the following cases; FRN v. Akabueze [2010) LPELR 1272 (SC); Bamgboye v. Univ. of Ilorin [1990] 10 NWLR (PT622) 290. According to the Apex Court in that case, the failure of anybody or tribunal to observe these rules renders the proceedings and the decision a nullity. Any breach of the right to fair hearing renders the whole proceedings a nullity. See the case of Eze v. Unijos, supra, pg 230, Para B. Similarly, the Court of Appeal in the case of Slok (Nig) Ltd v. Chief Judge, FHC, Nig [2020] 11 NWLR (Pt 1735), 374, Paras B-C held that the fair hearing within the context of Section 36(1) of the 1999 Constitution requires that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties. According to the Court in that case, the principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has a right to know what case is being made against it and be given ample opportunity to hear or respond thereto. The Apex Court in the case of Saraki v. FRN, supra, Pg 467, Para F; 469, Paras B-D held that the right of a person who is charged with a criminal offence as guaranteed by Section 36(6) (a) of the Constitution is that he shall be entitled to be informed in detail, the nature of the offence and to be given adequate facilities for the preparation of his defence. In that case, the Court held that the appellant ought to be informed in the information the person who complained that his assets and declaration did not comply with the code of conduct and that he ought to know the authority that examined his assets and found them to be false. The Court held that the omission of these details in his information renders the counts of the charge incurably bad and invalid.

64. Applying the above principles to the case at hand, there is nothing to show that the claimant was allowed to make personal or legal representations before he was convicted. I have perused the two charge sheets, the document tiled “Discipline of soldiers” dated 20^th September, 2007, the letter dated 29^th September 2007 communicating the outcome of the trial to the appropriate authority and the document titled minor offences book all pleaded and tendered by the 1^st-3^rd defendants in proof of their assertion that the laid down procedure was followed and I found that the claimant was at no point allowed to make representations during the summary trial. On the face of the charge sheets, a witness was named, which to my mind is the witness of the prosecution. DW who testified on behalf of the 1^st-3^rd defendants on record equally stated in paragraph 15 of the written statement on oath that a witness was called and which this Court takes to be the named witness on the charge. There is nothing in the document titled Discipline of soldiers and dated 20^th September 2007 which is the date of the trial and conviction of the defendant before the Commanding officer to show that the claimant was allowed to make representations in defence of the charges against him. There is equally nothing to show that the claimant was allowed to defend himself in the letter dated 29^th September which was written by the Commanding Officer who passed a finding of guilt on the claimant and equally sentenced him communicating the outcome of the trial to the appropriate authority. I find from a perusal of the exhibits tendered by the 1^{st -}3^rd defendants that it was on the same date that the claimant appeared before the Commanding Officer’s order that he was sentenced. This clearly shows that the claimant could not have been given adequate time and opportunity to defend himself before the Commanding Officer who was the one who made a finding of guilt and conviction as seen on the two charge sheets and other supporting documents. This Court believes the evidence of the claimant that he was not allowed to defend himself as there is nothing on record to prove otherwise. This clearly offends against the first principle of natural justice audi alterem patem. In the case of Nigerian Navy v. Labinjo [2012]17 NWLR (1328) 84-85, Paras G-B, the Supreme Court held that a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. Every party must be heard at every material stage of the proceedings before handing down a decision. See the case of FRN v. Akabueze, supra. Even the Almighty gave Adam and Eve an opportunity to be heard, when they breached his commandment by asking them questions leading to why they ate the tree of knowledge of good and evil. He asked “Hast thou eaten the tree, whereof I commanded thee that thou shouldest not eat?” (See Gen. 3:11 KJV). He indeed gave both of them the right of hearing before he handed down his verdict against them. In the same vein the claimant deserve to be questioned and be heard before the Commanding Officer handed down the finding of guilt on him, leading to his dismissal. It is apparent from the record that claimant was denied his Constitutionally guaranteed, inalienable, inviolable, right to fair hearing having not been given opportunity to defend himself at the summary trial. I so find and hold.

65. The second leg of the principle states that one should not be a judge in his own cause. The commanding Officer who was the one who made a finding of guilt and passed the sentence on the claimant was the same person who wrote the letter dated 29^th September 2007 intimating higher authority on the outcome of the summary trial. In the last paragraph in that said document, the said officer recommended that the Claimant’s award of dismissed regiment should stand disregarding any request for redress that may arise in the future. This to my mind amounts to being a judge in his own cause. He was the one who made the finding of guilt and passed the sentence, he is equally the one making a recommendation that the sentence awarded should stand and request for redress should be disregarded. It is in view of all the foregoing and the reasons earlier given that I find that the claimant was not afforded fair hearing in his trial and subsequent proceedings. I so find and hold. The trial of the claimant having been in violation of the rules of natural justice as enshrined in Section 36 of the 1999 Constitution as amended cannot be the basis/foundation of any action. This is in tandem with the position of the firm and sound position of the law that you cannot put something on nothing and expect it to stand. See the notorious case of UAC v. Macfoy . Differently put, nothing can be sustained under a faulty foundation. In this present case, it then means that every other act founded on the claimant’s dismissal are themselves illegal and unlawful. I so hold

66. It is trite that wherever there is a wrong there must be a corresponding remedy according to the latin maxim ubi jus ibi remedium. See the case of Re: Abdullahi [2018] LPELR-45202 (SC) per Augie JSC. It is expedient for me at this stage to consider the reliefs sought by the Claimant. What then are the remedies available to the Claimant having held that the punishment was awarded in excess of the jurisdiction of the Commanding Officer and that he was not given fair hearing? The claimant by relief ‘a’ seeks a declaration that his dismissal constituted an unfair dismissal, unconstitutional, and therefore unlawful. I have held that the punishment awarded to the Claimant is one in excess of the jurisdiction of the Commanding officer. I have equally held that the claimant was not given fair hearing in his trial. It is trite that non-compliance with the rule of natural justice as provided in the Constitution renders a proceeding a nullity. Once the original proceeding is a nullity, all subsequent proceedings or steps taken thereafter are also a nullity. See the case of Saraki v. FRN, supra, pg 469, Paras E-F; Olayinka v State [2007] 9 NWLR (Pt 1040) 561. I therefore find that the summary trial which led to the dismissal of the claimant from the Nigerian Army is a nullity because it is in breach of his Constitutional right to fair hearing. Reliefs ‘a’ and ‘c’ succeed. I so find and hold.

67. On relief ‘b’ and ‘d’ taken together, I have held that there is nothing on record to show that the claimant was detained for the said 49 days. I have equally held that the punishment awarded the claimant is ultra vires the powers of the Commanding Officer. In UMTHMB v. Dawa [2001] 16 NWLR (Pt. 739) 424; Public bodies like the defendants in this case are warned not to act arbitrary but in good faith. I have also held that the trial of the claimant is a nullity having been in breach of his constitutional right to fair hearing. I therefore find that the regimental dismissal of the claimant which is in breach of the principles of natural justice constitutes an abuse of office. Regarding relief d, the Court will not affirm an illegality. Any act which occasioned miscarriage of justice against a party should not be allowed to stand. See the case of NBTC v. Ogele Court [2010]8 NWLR (Pt 1196), 258, Paras E-G. The proper action for a Court to do when an act is illegal and a nullity is to set same aside. I therefore set aside the regimental dismissal of the claimant. Reliefs (b) and (d) thus succeed.

68. I will take reliefs e, f and g together. It is trite that in contracts with statutory flavour like in the instant case, where termination or dismissal is found to be unlawful, the Court may order specific performance of the contract, injunction or reinstatement. See the case of Oforishe v. NGC Ltd [2018] 2 NWLR (Pt 1602) 35. It is well established that upon reinstatement, the claimant is entitled to be paid all his arrears of salary and emoluments including fringe benefits up to the time of reinstatement and thereafter as and when due and payable. See the case of Ekeagwu v. Nigerian Army [2010] 16 NWLR (Pt 1220) 419 @ 429-430, Paras F-A. In such situations, the claimant does not need to prove any special circumstances to entitle him to the consequential relief of reinstatement and payment of salaries during the period in which the employment was unlawfully determined. See the case of Omidiora v FCSC [2007] 14 NWLR (Pt 1053) 17, per Ogunwumiju JCA, now JSC, Para E-A. The claimant pleaded facts relating to this in paragraphs 7, 8, 9 and 53 of the statements of facts. The claimant equally tendered a payslip in proof of his initial salary. The defendant merely traversed the claim of the claimant to the said sum but did not tender any evidence in disproof of that fact. It is in the light of this that I find that reliefs ‘e’, ‘f’ and ‘g’ succeed.

69. On relief ‘h’, it is trite that right of action is a constitutional right as protected under Section 6 of the Constitution supra. It is only expedient that a person should not be subjected to any form of harassment or arbitrariness for exercising his constitutional right which is protected by the Constitution. It is in the light of this that I find that relief ‘h’ succeeds.

70. The claimant in relief ‘i’ claims for aggravated and exemplary damages against the defendants. The Supreme Court in the case of Ekeagwu v. Nigerian Army, supra, held amongst other things that in an action for unlawful termination or dismissal where a claimant seeks the relief of reinstatement which is granted, the issue of measure of damages for the unlawful, termination, dismissal or retirement becomes irrelevant because upon reinstatement, the claimant is entitled be paid his salaries. I have granted the reliefs of the claimant regarding reinstatement and arrears of salary, the issue of damages is therefore irrelevant. Relief ‘i’ therefore fails.

71. The claimant in relief ‘j’ is claiming for the cost of litigation. It is well established that a successful party is ordinarily entitled to cost which he should not be denied except for good reasons. See the case of Saeby v. Olaogun [1999] 10-12 SC, 45-59. Recently, this Court in the case of Mr Abdulwaheed Odusile &3 Ors v. Nigerian Union of Journalist (NUJ) & 5 Ors, unreported suit no NICN/ABJ/5/2020 which judgment was delivered on the 11^th day of March, 2021, this Court held while relying on the Court of Appeal decision in the case of International Offshore Constr. Ltd v. SLN Ltd [2003] 16 NWLR (Pt 845) @ 179, Paras A-D that claims like this are in the realm of special damages and are granted once they are specifically pleaded and strictly proved and in line with the ordinary principle of genuine and reasonable out of pocket expenses. Applying the above principle to the issue at hand, the claimant pleaded the said cost of litigation in paragraph 54 of his statement of claim and in support tendered a cash receipt of payment of the said sum to his counsel. The said exhibit was not challenged by any of the defendants. I equally found that the claimant filed several processes in this Court while his Counsel made just two appearances in this matter. I therefore award the sum of one million naira being the reasonable cost the claimant is seen to have suffered in prosecuting this case.

72. For the avoidance of doubt and for all the reasons given supra, I find and hold that the claim of the claimant succeeds except for relief (i) with regards to compensation aggravated and exemplary damages.

73. I therefore make an order for the reinstatement of the claimant forthwith and all his salaries and allowances be paid from 20^th September 2007 till the date of his reinstatement.

74. Cost of N1,000,000.00 awarded to the claimant.

Judgment is entered accordingly.

Hon. Justice O. O. Oyewumi

(Presiding Judge)