IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA        

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

20TH DAY OF MAY 2022                                                        SUIT NO: NICN/ABJ/257/2017

BETWEEN

Ehimen Benjamin ……………………...................................................................... claimant.

AND

1.      Nigerian Navy

2.      Chief of Naval Staff                                                                                         defendants

                                                            JUDGMENT.

1.      Vide a general form of complaint dated 24/8/2017 and filed on the same date, the claimant commenced this suit against the defendants praying for:-

1.      A declaration that his purported dismissal from service is unconstitutional null and void, done without fair hearing.

2.      An order directing the defendants to re-instate him back to work.

3.      An order for the payment of all his entitlements from the months of August, 2008 at the rate of  N22,000.00 monthly till the date judgment is delivered.

2.      Upon being served with the originating process commencing this suit, the defendants filed a joint statement of defence on 19/12/2017.

3.      In proof of his case, the claimant testified as CW1. CW1 after identifying his witness statement on oath of 24/8/2017 adopted it as his evidence before the court. CW1 also tendered four documents which were admitted in evidence and marked as exhibit CW1A, the claimant’s certificate of completion of basic seamanship training dated 5/4/2007, exhibit CW1B, is a letter of reply written by the 1st defendant to the claimant’s  solicitor informing him of the action taken against the claimant dated 26/5/2017, exhibit CW1C,  is a letter of appeal dated 29/1/2014, to the Honourable Minister of defence on behalf of the claimant by National Human Right Commission. And exhibit CW1D, is a letter to the defendants by claimant’s solicitor dated 12/1/2017.

4.      One Lt Commodore Ogogbise, a naval provost officer testified in proof of the defence of the defendants as DW1. DW1, after identifying his witness statement on oath adopted same as his evidence in proof of the defence of the defendants in this case. DW1 also tendered three documents in evidence which were admitted in evidence. They are; exhibit DWA, is the report of summary trial, exhibit DWB1 – 6, is the punishment returns of the 1st defendant for July 2008 and DWC, is the General punishment information Form of the 1st defendant dated 30/7/2008.

THE CLAIMANT’S CASE.

5.      The claimant was enlisted into the Nigeria Navy as an ordinary seaman (PTI) on 10/7/2006, with service No. x10645, before his dismissal from service in year 2008. The claimant while on course at Quara in Apapa, Lagos, upon his return from his home town following the death of his wife, he was detained for two Months on the ground that he absented himself from duty. The claimant stated that on the 4/7/2008, after two months in detention in custody of the 1st defendant, without investigation and trial of the case made against him, he was verbally ordered to stop going to work by his immediate Commanding Officer. An act the claimant claims was imposed on him contrary to the provisions of the 1999 Constitution of the Federal republic of Nigeria, as amended and indeed the Armed Forces Act, 1994 and Regulations.

6.      According to the claimant following the verbal order imposed on him to stop coming to work then, the claimant kept on writing appeal letters to the defendants through Human Right Commission and his solicitors. It was until on the 26/5/2017 when he was informed through a letter of reply to his solicitor of the actual nature of the punishment of dismissal earlier imposed on him since the year 2008. Thus, why the claimant now approached this court by filing this action against the defendants challenging the unlawfulness of the defendant’s action.

THE DEFENDANTS CASE.

7.      The defendants’ case is that, the claimant was a trainee of  PT III Qualifying course at Apapa Lagos, when the claimant frequently exhibited lack of interest in the training in that the claimant was absent on six occasions during the training. Because of the claimant’s truancy he could not graduate with his course mates. The claimant never took any permission let alone be granted one. The defendants did not maliciously refuse granting claimant permission as no request was made for such.

8.      It was stated that the claimant was arraigned before the commanding officer on six counts charges of absence without leave. Wherein the claimant pleaded guilty to all the charges, but was given respite and placed on open arrest in accordance with service laws, with the hope that he will seized the opportunity to become a better rating. But, surprisingly the claimant further absented himself from his duties on the 24/4/2008 and returned on 25/6/2008. The claimant further absented himself from duty on the seventh occasion for a whooping period of sixty three days and the claimant was marked ‘run’. Consequently, the claimant was again arraigned before the commanding officer on the 4/7/2008 on 7 counts charges of absence without leave. It was stated that during the trial of the claimant, he pleaded guilty to the six counts charges, but attempted to defend his long absence on the seventh occasion. That throughout the period the claimant was absent, he made no attempt whatsoever to contact or inform anybody on board NNS QUORRA about his whereabouts. At the same time the claimant drew his salary during the period of absence.

9.      At the conclusion of his trial for absenteeism the claimant was found guilty and punishment of dismiss regiment was awarded in accordance with the law. It was stated that the defendants followed due process and claimant was accorded fair hearing.

THE SUBMISSION OF THE DEFENDANTS:

10. The defendants formulated twin issues for determination. They are:-

1.      Whether the Claimant was dismissed in accordance with the service law and procedure to which he was subject to.

2.      Whether the Claimant has proved his case to be entitled to the reliefs sought.

ARGUMENT:

11. Issue one; Whether the Claimant was dismissed in accordance with the service law and procedure to which he was subject to. T. Adeagbo, Esq; counsel for the defendants in arguing this issue submitted that the Claimant was appropriately dismissed from the service of the 1st Defendant. According to counsel for the defendants, it has been uncontroverted throughout the trial of this suit that the Defendants observed the highest standard of military practice, etiquettes and procedure in dismissing the Claimant, as the said dismissal was made pursuant to the relevant laws guiding punishment for the offence of absence without leave committed serially by the Claimant. According to counsel there is no doubt that the offence of absence without leave committed by the Claimant falls within the category of offences that may be tried summarily with appropriate punishment meted out accordingly.

12. Counsel submitted that the Armed Forces Act (AFA), Cap. A20, LFN, 2004, provides two channels by which persons to whom the Act apply can be tried for offences to wit; Summary Trials under Section 124, AFA, 2004, or by a Court Martial under Section 129 AFA, 2004. It is against this backdrop that the Claimant was appropriately tried and dismissed summarily for the offence of absence from duty without leave under Section 59(a) of the AFA, 2004, which provides thus: “A person subject to service law under this Act who—

13. absents himself without leave… is guilty of an offence under this section 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”.

14. Counsel argued that the proper import of the Section is that liability to 2 years imprisonment term is when claimant is tried by a Court Martial. This is not the case here. The Claimant was tried summarily and as such the relevant provisions on Summary Trials in respect of the Claimant’s offence are applicable. And in the circumstance, the validity of the Claimant’s summary conviction lies in a combined reading of Section 116 (1) (c) (i) and Section 124 (6) (a) of the Armed Forces Act, LFN, 2004. For the purposes of clarity, Section 116 (1) c (i) is reproduced thus:

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

(c) where the accused is below the rank of warrant officer class one or chief petty officer, the brigade commander, or his equivalent, may summarily deal with the charge by either dismissing the case or awarding any of the following punishments, that is—

(i)               dismissed regiment to rank of staff sergeant or below;”

15. Section 116 above clearly empowers a Superior Officer to summarily try and punish Junior Officers under his command and impose any of the punishments so provided under the Section. In the instant case, the Commanding Officer was accordingly empowered to dismiss the Claimant whose rank is that of an Ordinary Rating; a Junior Officer as clearly spelt out in the Fourth Schedule to the Armed Forces Act, LFN, 2004. It is submitted that the claimant in paragraph 1 of his statement of fact also reinforced the propriety of his Commanding Officer summarily dismissing him as a Junior Officer as follows: 4 “The claimant was an employee of the defendants enlisted into the service of the defendants on the 10/7/2006, as an Ordinary Seaman (PTI) with service No. X10645”.

16. In further cementing the propriety of the Claimant’s dismissal, counsel refers to the statement of DW1, Lieutenant Commander Ogogbise under cross examination, when asked about the nature of the trial in which the Claimant was dismissed, he stated as follows: “I am not a member of the Court Martial; it was a summary trial conducted by the Commanding Officer.”

17. It is submitted in furtherance to the powers of a Commanding Officer stipulated in Section 116, AFA, 2004, above, Section 124(6) (a) delineates the categories of offences that may be tried summarily as follows:

“A commanding officer shall not deal summarily with a charge under any of the following sections of this Act, that is— (a) sections 45, 46, 47, 48, 51, 52, 53, 65, 66, 67, 69, 70, 71, 72, 73, 75, 76, 83, 88, 91 and 93”.

18. It is the contention of counsel that the offence of absence without leave provided for under Section 59 of the AFA, 2004, having been excluded by Section 124(6) of the AFA, 2004, as an offence which may be tried summarily, is appropriately punished under Section 116(1) c (i), AFA, 2004. The power of summary dismissal having been exercised in accordance with the AFA, 2004, in the instant case is indeed valid. Counsel urged the court to so hold.

19. Having clearly outlined the statutory validity of the dismissal of the Claimant from the service of the 1st Defendant, can the contention of the Claimant that he was dismissed without recourse to due process be sustained? Counsel answer in the negative. The Claimant in paragraph 5 of his Statement of Facts clearly admitted to his absence without leave in flagrant disregard for constituted authority as follows: “The claimant further states that after seeking for permission and maliciously not granted by his Divisional Officer, because of the nature and degree of the ill-health situation of his pregnant wife who was profusely bleeding at the time, he had to go in the circumstances to attend to his wife, who unfortunately died while being taken to the village.” It is submitted this piece of evidence of the Claimant constitutes an admission to the effect that he was not given permission to absent himself from work/duty, but on his own volition and contrary to the order of his Superior Officer, he absented himself from duty. It is trite law that an admission or confession is the best evidence that every Court of law must act and rely upon, where it is shown that the admission or confession was voluntary, direct and unequivocal as in this case. In support of this contention, counsel relied on the case of A.G., Imo State V. Imo Rubber Estate LTD. (2020) 13 NWLR (pt.1741) 209 at 239 paras B-C. Counsel also refers to the case of Eigbe v. N.U.T. (2008) 5 NWLR (pt. 1081) 604 at 632 paras E-F, where, SHOREMI, J.C.A., held that:

‘‘An admission is an implied concession by a person of the truth of an alleged act. It is generally presumed that no man would declare anything against himself unless it was true…’’

20. Also in the case of Ayedatiwor V. State (2018) 11 NWLR (pt. 1631) 542 at 544, para G, the Supreme Court held that: ‘‘There is certainly no evidence stronger than a person’s own admission or confession”

21. And under cross examination, when asked whether he absented himself from duty without authority, he also stated: “I took permission from my Commanding Officer, I went to the Commanding Officer to ask for permission orally. I asked orally it was not written”.

22. This is in contradicting his earlier statement above that he obtained permission to be absent from work, he went on to say: “I was in the Commanding Officer’s Office he did not assure me to leave. Yes, absence from work is the reason for my dismissal”.

23. It is submitted that the law is settled that contradictions are major discrepancies that affect the strength of a party's case. In Goddy Edosa & Anor V. Mrs. 6 Ekomwenrienrien Ogiemwanre (2018) LPELR-46341(Sc) the Supreme Court on the effect of contradictions, observed as follows:

“this Court stated in very clear terms the nature of contradiction that will result in rejection of evidence of witnesses as follows: - "Now it is pertinent to reiterate the general principles of the Law on matters of contradiction in evidence of parties before a Court. That it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence." I have taken the pains of going through the evidence laid before the trial Court, and I am of the firm view that the contradictions inherent in the evidence of the claimant are so material that ignoring them will occasion a miscarriage of justice." Also see, Wachukwu v. Owumwanne (2011)14 NWLR (Pt. 1266) 1 at 27 paras E – H. 3.15.

24. According to counsel contradictory oral evidence given by the Claimant is fatal to his case. It shows that the Claimant is not a witness of truth and that the entirety of his suit is anchored on falsehood and baseless claims. Furthermore, having admitted to have committed the said offence, the Claimant is indeed liable to all consequent punishments. This premise is anchored on a principle of our evidential jurisprudence, that facts admitted need no further proof, encapsulated in Section 123 of the Evidence Act, which provides thus:

“No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”

25. It is submitted that the above statutory provision has been reiterated by the Supreme Court in a legion of cases. Such as Akinyede Olaiya v. State SC.562/2014, where the Supreme Court PER EKO, J.S.C stated:

‘‘Facts admitted, or facts not disputed, need no further proof. They are, in law, taken as proved and /or established. The principle was also restated in Odebunmi & Anor v. Oladimeji & Ors (2012) LPELR – 15419 (CA) and ACB Int’l Bank Plc v. Adiele (2013) LPELR – 21164 (CA) relying on Ogolo v.-Fubara (2003) 11-NWLR (pt,831) 231; Odulana v. Haddad (1973) 11 SC 35. Accordingly, the actus reus of the murder charge being defended by the appellant, having been admitted, is no longer in dispute, it is accordingly taken as established.’’

26. Counsel commended to the court the Supreme Court decision in the case of Bunge V. Govt., Rivers State (2006) 12 NWLR (pt. 995) 573 at 599-600, paras H-B.

27. Also in establishing the validity of the propriety of the dismissal of the Claimant, counsel drew the attention of the court to the uncontroverted testimony of DW1, LT. CDR Ogogbise, under examination-in-chief. In further establishing the warranted and legitimate dismissal of the Claimant, it is pertinent to state that the Claimant never led and placed any evidence before this Honourable Court to show that he was not given a fair hearing prior to his dismissal. On the other hand, the defendants have led credible evidence through the testimony of DW1 and two exhibits marked DWA Report on the Summary Trial and DWB evidencing that indeed the Claimant was heard in a trial before a punishment was meted out on him. The contents of exhibit DWA deal a devastating blow to the entirety of the case of the Claimant in this regard. Paragraphs 5 and 8 of the said exhibit read as follows:

5. He was arraigned before the CO on the 4 of Jul 08 on 7-count charges of absence without leave. During the trial the rating pleaded guilty to all the charges. However, the accused could not give any cogent reason for the first 6 charges. He attempted to defend his long absence on the seventh occasion…

8. As the trial progressed, it was revealed that the defence of the rating was a feeble attempt to cover the period of absence, when indeed he was seen with some miscreants around seedy spots in Marine Beach. Furthermore, it was evident that the rating was not interested in pursuing a naval career.”

28. Counsel submitted that it is crystal clear that as opposed to the claims of the Claimant that his dismissal was without fair hearing and unconstitutional, the unchallenged and uncontroverted evidence of the Defendants placed before this Court, points to the fact that the Claimant was afforded a hearing, tried and subsequently dismissed pursuant to the relevant provisions of the Armed Forces Act, 2004. Consequently, all that can be said is that, the entire claim of the Claimant before this Court is nothing but an abuse of Court processes.

29. According to counsel the case of the claimant is best described as a facade employed to tilt the scales of justice in his favour. Unfortunately for the Claimant, the scales of justice are not tilted by baseless, weightless and watery evidence but by solid and cogent evidence. As it can be seen by the blind and indeed highly audible to the deaf that all the Claimant has done in the entirety of this case is to say that his right to a fair hearing was denied him and nothing more.

30. It is submitted that the apex court has rebuked times without number, Claimants who canvass weak evidence before the Courts and rely only on the notion of ‘denial of fair hearing’ in support of their case. In Orugbo v Una (2002) 16 NWLR (Part 792) 175, Niki Tobi, JSC (of blessed memory) observed as follows:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.

31. Counsel submitted that where an employment is provided for statutorily, as in the instant case, the procedure for terminating such an employment must be in accordance with the statute it is made pursuant. In Union Bank of Nigeria Limited v. Chukwuelo Charles Ogboh (1995) LCN/2667(SC) the Supreme Court held as follows:

“Employment with a statutory backing must be terminated in the way and manner prescribed by that statute. Any other manner of termination inconsistent with the relevant statute is null and void and no effect”.

32. Counsel also placed reliance on the cases of Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162; Aiyetanv. NIFOR (1987) 3 NWLR (Pt.59) 48; Garha v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449.

33. It is submitted in the circumstance of this case the Claimant having been dismissed in accordance with the provisions of the Armed Forces Act, 2004, elucidated above was validly dismissed? The dismissal of the Claimant was carried out in consonance with the clear procedures for dismissal under Sections 116(1) (c) (i) and 124 (6) (a) of the Armed Forces Act, LFN, 2004, and therefore valid. Counsel urged the court to uphold the dismissal of the Claimant in the light of the facts, statutory and judicial authorities, so canvassed before this Honourable Court.

34. It is submitted that the Claimant has failed woefully in establishing that his dismissal from the service of the 1st Defendant violated his right to fair hearing and therefore unconstitutional. Counsel urged the court to resolve this issue in favour of the Defendants herein.

35. Issue two; Whether the Claimant has sufficiently proved his case against the Defendants with material facts to warrant this Honourable Court to grant the reliefs sought”

36. In arguing this issue counsel submitted that the Claimant has not proven his case sufficiently against the 1st and 2nd Defendants with material facts to warrant this Court to grant the reliefs sought on the face of the Complaint. Counsel urged the court to so hold.

37. It is submitted that a party seeking declaratory reliefs must adduce cogent evidence in support of same. More so, the Supreme Court has reiterated that a claimant must succeed on the strength of his case and not on the weakness of the defendant’s case. In support of this view counsel refers to the case of Alhaji Isiyaku Yakubu V. Alhaji Usman Jauroyel & Ors (2014) LPELR-22732(SC), where the Supreme Court observed as follows:

“The law is settled that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness (if any) of the defence, except where the defence supports the plaintiff's case”.

38. Reference was also made to the cases of Onwugbufor V. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671: Eze v. Atasie (2000) 9 WRN 73 at 88; Adesanya V. Aderonmu (2000) 13 WRN 104 at 115 lines 10 - 35.

39. It is submitted throughout the proceedings, the Claimant failed to prove that he was wrongly dismissed from the service of the 1st Defendant or that he was denied his right to a fair hearing. The Claimant clearly admitted in his Complaint that he left work without being authorized to do so. In the circumstance, it is difficult to see how he can claim that his dismissal was wrongful and breached the provisions of the Armed Forces Act, LFN 2004.

40. Counsel also argued that the law is trite that he who asserts must prove as provided in Section 131 of the Evidence Act, 2011. In support of this submission reliance was placed on the case of Agboola v. U.B.A. Plc (2011) 11 NWLR (Pt. 1258) 375. Counsel argued that the Claimant has not been able to prove his claim with sufficient particulars to warrant this Honourable Court to grant the reliefs sought on the face of the complaint. The standard of proof is on a preponderance of evidence. This principle of law has its roots statutorily domiciled in the provisions of Section 131 of the Evidence Act, 2011, which clearly states thus; “whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist”.

41. Furthermore, Section 133 (a) of the Evidence Act, in a similar vein provides that: “In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgement of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

42. It is submitted that considering the evidence of the Claimant in light of the requirements of proofs stipulated by the Evidence Act, 2011, the claimant has failed woefully in discharging the burden of proof placed on him. On the standard of proof required of a party seeking a declaratory relief counsel refers the court the position of the Supreme Court in the case of Engr. George T.A. Nduul V. Barr. Benjamin Wayo & Ors (2018) LPELR-45151(SC): "Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court's discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour.

43. It is submitted in the light of the failure of the Claimant to prove that his dismissal was null and void or unconstitutional, he cannot therefore, be entitled to other reliefs sought in the Complaint.

44. According to counsel the Court will not make an Order of reinstatement where the Claimant is found guilty of misconduct, as in the instant case. To buttress the point being made reference was made to the case of Faponle v. University of Ilorin Teaching Hospital Management Board (1991) 4 NWLR (Pt 183), the Court of Appeal in this regard, succinctly observed as follows:

“In the instant case, the Court will not exercise its discretion to order specific performance of the contract of service in favour of the appellant, even though the contract had a statutory flavour, because…the appellant was a persona non grata to the unions in the hospital such that his reinstatement may cause industrial unrest or riots; and the fact that the appellant admitted that he was guilty of disobedience and insubordination.”

45. It is submitted that the evidence before this Honourable Court establishes the misconduct of the Claimant who absented himself serially from duty without permission to do so. Counsel refers to the claimant’s oral testimony under cross examination and the averments in his statement of facts already captured above wherein he admitted to the offence of absence from work. In the circumstance, counsel urged the court to uphold the claimant’s dismissal.

46. According to counsel all other claims in the instant suit are predicated on the main claim, seeking a declaration that the dismissal of the Claimant was not valid. It is evident in the entirety of this case that the Claimant has failed to lead cogent evidence to entitle him to the reliefs he seeks. In support of this submission counsel refers to the decision in Ziideeh V. R.S.C.S.C. (2007) 3 NWLR (PT.1022) 554, where the Supreme Court held as follows:

‘It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. (See Katto v Central Bank of Nigeria (1999) 6 NWLR (Part 607) 390 at 405 and Amon v Amodu (1990) 5 NWLR (Part 150) 356 at 370).

47. Counsel posited that in the circumstance, it is only logical, that having failed to lead cogent evidence that his dismissal was wrongful, all other ancillary claims of the claimant must fail.

THE SUBMISSION OF THE CLAIMANT:

48. In the final written address of the claimant a sole issue was formulated for determination in this case, to wit:-

whether the claimant was given fair hearing when his service with the defendants was verbally determined by his Commanding Officer.

49. In arguing the issue for determination counsel submitted that it is clear from the pleadings and evidence adduced in this case that the claimant is a soldier, a person subject to the Armed Forces Service Laws and Regulations, as well as the constitution of the Federal Republic of Nigeria.

50. The claimant in this case was alleged to have been dismissed from service by the defendants on an allegation of being severally absenting himself from duty, an offence contrary to section 59 (1) of the Armed Forces Act, 1994.

51. Section 123 of the Act, states thus;

“Before an allegation against a person subject to service law under this Act (in this section referred to as the “accused”) that he has committed an offence under a provision of this Act is further proceeded with, the allegations shall be reported in the Form of a charges to the Commanding Officer of the accused and the (commanding Officer shall investigate the charge in the prescribed manner.”

52. It is the case of the defence that the claimant was summarily tried and dismissed from service. It is submitted that, assuming, but without conceding, he was summarily dismissed, it is the contention of the claimant that his case was never investigated and summarily tried by his commanding officer in Compliance with the prescribed manner by law and even given the opportunity to be heard on the allegation for which he was dismissed an act contrary to the provision of the 1999 constitution of the federal republic of Nigeria as Amended and the Armed Forces Act.

53. Again section 117 of the Armed Forces Act, 1994 Provides as follows:-

“Notwithstanding anything in the forgoing sections of this Act a commanding Officer shall not proceed summarily with the trial of an officer, warrant or Petty Officer, until he has offered the officer, warrant or petty officer an opportunity of electing to be tried by a court- Martial and if the person so elects in writing, the commanding officer shall take the prescribed steps with a view to the charge being tried by a court – martial.”

54. It is submitted that in this case there is a complete transgression of the above provisions of the Armed Forces Act, when there is nothing in the record of this case showing that the claimant herein was given the opportunity of electing to be tried by a court martial before being subjected to any summary trial, if at all there was any.

55. It is argued by counsel that evidence abound that the claimant in this case was just detained for two months before he was verbally asked to go without any charge in the prescribed manner or any investigation by his commanding officer as required by law but was only informed of the nature of the verbal dismissal action taken against him in 2017 through exhibit CW1B, when he was said be dismissed. See paragraphs 6, 7, 8 and 9 of the claimant’s unchallenged evidence on oath as adopted in his witness statement on oath.

56. Section 36 (i) of the 1999 Constitution of the Federal Republic of Nigeria as amended clearly provides for the right to fair  hearing of the claimant as a  Nigerian Citizen in the determination of his rights. It is submitted that the claimant being a soldier is also subject to the service laws of the Armed Forces and as Nigerian Citizen governed by the grundnorm being the constitution of the Federal Republic of Nigerian and as such he can only have his employment regulated and determined according to Laws governing him and  the defendants. His employment with the defendants therefore is one governed by statute.

57. Counsel further argued that where a contract of service is protected by statute like the one in this case, any act done contrary to the statute or terms of the employment and or the constitution renders the act Ultra vires and void. For there cannot be unilateral repudiation of the contract without compliance with the laws or terms. On this submission counsel relied on the cases of Yaba college of Technology (1993) 6 NWIR (Pt.300) 426 AT 456 G-H, Obioha V Dafe (1994) 2 NWLR (PF.325) 157 at 173

58. It is the submission of counsel that in this case there is a complete breach of fair hearing, when the claimant was never heard on his trial before been dismiss from service according to section 36(1) of the Federal Republic of Nigeria constitution. Not only that there was also complete deviation from sections 117 and 123 of the Armed Forces Act, 1994 as referred to above when the defendants failed to comply with the prescribed procedure of disciplinary action in determining his employment with the defendants.

59. The defendants in their defence appeared to have heavily relied on exhibit DWA and DWB1-6, which are the report of summary trial and monthly punishment returns of the 1st defendant. These documents, it is submitted cannot in law avail the defence of compliance with the provisions and requirements of the said sections 117 and 123 of the Armed Forces Act, 1994.

60. Counsel contended that exhibit DWA, being  a report  on the summary trial, is not and cannot be interpreted to mean  the Record  of the summary trial proceedings itself conducted by the claimant’s Commanding  Officer, wherein the charges and plea of the claimant are supposed to be recorded at the trial including the evidence taken thereof. The said exhibits is just the report signed by one OG  Ogbise who was called as DW1, an officer designated as a Regulation Officers and not the claimant’s Commanding Officer.

61. Again it is contended that exhibit DWB1-6 signed by one Ja Ajani (commanding officer) is just the generally monthly punishment return of the 1st dependant sent and forwarded to the Flag Officer and again cannot take the place of the Record of summary trial  proceedings of the claimant.

62. According to counsel there is no evidence available in this case showing that the claimant was in fact and law charged and tried of the alleged offences of absenteeism contrary to section 59 of the Armed Forces Act, 1994 and in accordance with the procedure laid down in the Act and the constitution of the Federal Republic of Nigeria as he was also never given fair hearing to defend himself of the allegation levied against him.

63. In Oladele & Ors. V Nigeria Navy CAL/C/36/200/, CITED AT PAGE 639 OF The Armed Force, by Jidde Olakanmi and Co. Hon. Justice Aderemi JCA had this to say on the need of the Armed Forces to comply with the constitution of Federal Republic of Nigeria by all arms of government, authorities and members of the Nigerian Society.

“let it be said that members of the armed forces in this country have not denounced their membership of the Nigerian Society and it seems to me that they cannot do so in manner calculated to jettison the progress of the Nigerian constitution the grundnorm”

64. In concluding his submission counsel urged the court to grant the reliefs sought by the claimant in this case.

COURT’S DECISION:

65. I have perused the processes filed in this suit, the evidence led by the parties as well as the written submissions of counsel for the parties and oral submission of counsel for the defendants, who while adopting final written address of the defendants, urged the court to deemed the final written  address of the claimant as having been argued.

66. The defendants in their final written addresses formulated twin issues for determination. While the claimant submitted a sole issue for determination. Having regards to the pleadings and evidence adduced before the court by the parties I am of the view that this suit can be dealt with on a single issue to wit:

‘’Whether from the evidence adduced, the claimant has proved entitlement to the reliefs being sought from the court’’.

67. The law is trite that a claim is circumscribed by the reliefs claimed. The duty of a party claiming, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs being claimed, and adduce evidence to prove same. He may, at the end of the day, obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. See Ativie v. Kabelmetal (Nig.) Ltd. (2008) NWLR (Pt.1095) 399.

68. In the case at hand, the claimant is claiming three reliefs. The first relief is for declaration that the purported dismissal of the claimant is unconstitutional, null and void and done without fair hearing. The second relief is for an order directing the defendants to reinstate the claimant back to his work. The third relief is for an order for payment of all his entitlements from the month of August, 2008, at the rate of N22,000.00 monthly till the judgment is given.

69. It is apparent from the reliefs being sought that the first declaratory relief is the main claim. While the remaining two reliefs are ancillary claims dependant on grant of the first relief.

70. There can be no doubt that the fulcrum of the claimant’s claim is to contest the validity of the action of the defendant in dismissing the claimant’s regiment from the Nigeria Navy. The claimant is by his pleading and evidence saying that the defendants did not follow due process in taking action against him. While the defendants on their part are saying that they followed due process in dealing with the claimant.

71. According to the defendants the claimant was tried summarily on charges of absence without leave and found guilty by his Commanding officer and punishment of dismiss regiment was awarded in accordance with the law. In support of this exhibits DWA and DWB1-6 and DWC, were tendered in evidence.

72. For the claimant he was on course at Quorra, Apapa Lagos, when he got emergency call on serious ill-health condition of his pregnant wife, consequent upon which he asked for permission to go and attend to her treatment and medication at his hometown in Edo State, but his divisional officer maliciously refused to grant him permission. However due to the nature and degree of the ill-health of his pregnant wife who was profusely bleeding he had to go to attend to her. While taking his wife to the village she passed on. The claimant had to arrange to bury his late wife and then came back to his station. Upon returning, the claimant was ordered to be locked up for two months, after which on 4/7/2008, he was asked to stop coming to work without any specific charge or given opportunity to defend himself of any summary trial.

73. It is trite law that where an employee is challenging the validity of his dismissal from service whether it is from employment with statutory flavour as in this case or under the common law principles of master and servant, the claimant has a bounden duty to not only to plead the fact of the employment and the terms and conditions of service, but must prove same by cogent credible and admissible evidence before a determination of the validity of the dismissal can be considered by the court. Thus, a complaint by an employee that his employment has not been properly determined, he has the onus, first to place before the court the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these issues. See Francis Katto V CBN (1999) 5 S.C. (Pt.ii) 21; Iwuchukwu V Nwizu (1994) 7 NWLR (Pt.357) 379 @ 412; Aji V Chad Basin Development Authority & Anor. (2015) 3-4 S.C. (Pt.iii) 1 @ 20 para 5.

74. The above principle of law as enunciated has to be understood that contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. In the case at hand since the employment of the claimant is governed by the Armed Forces Act, the said Act, will play prominent role in determining the claims of the claimant.

75. It is clear from the pleadings of the parties, the evidence adduced and the relevant laws that the dismissal of the claimant from the service of the defendants was predicated on the offence of absence without leave under section 59 (a) of the Armed forces Act. This is a crime punishable under the Armed Forces Act. The claimant has pleaded and gave evidence to the effect that his wife was seriously ill, consequent upon which he asked for permission from his divisional officer to go and attend to her medical need, but he was not granted permission. The claimant went on to state that due to the nature of the sickness of his wife he had to go to attend to her. The claimant further stated that on the way to taking her to the village she passed on. Upon his return to his station he was detained for two Months thereafter on 4/7/2008, he was asked not to be going to the office.

76. For the defendants the claimant was on a course but he exhibited lack of interest in the training and he frequently absented himself from classes that resulted in him not completing the training with his course mates. The claimant was on 4/7/2008 arraigned before the commanding officer on 7 counts charges of absence without leave. The claimants admitted guilty on six counts, but attempted to defend his long absence on the seventh charge. It was discovered at the trial that the defence of the claimant was nothing but a feeble attempt to cover up the period of absence from duty without leave. Upon verification the claimant was found guilty and punishment of dismissed regiment was imposed.

77. It is patently clear from the facts of this case as disclosed above that the claimant in this case was alleged to have absented himself from work without leave contrary to section 59(a) of the Armed Forces Act.

78. It is to be noted that under the Armed forces Act, a person subject to service law, if accused of commission of an offence under the Armed forces Act, can either be tried by a Court-Martial or the charge may be tried summarily by the Commanding Officer of the accused person. In the case at hand the defendants have maintained that the claimant was charged, tried summarily, found guilty and punishment of dismissed regiment was awarded or imposed on him. See sections 59(a), 123, 124 and 125(2) of the Armed forces Act.

79. By the combine effect of sections 131, 132, and 133 of the Evidence Act, the burden of proof lies on he who assets. Generally, the onus is on the claimant to satisfy the court that he is entitled to the reliefs sought on the evidence adduced by him, and in doing so must rely on the strength of his own case and not on weakness of the defence. See Veepee Industry Ltd V Cocoa Industry Ltd (2008) NWLR (Pt.1105) 486, Fajemirokoun V GB Nigeria Ltd (2009) 5 NWLR (Pt.1135) 588. In the case a hand the claimant has the onus of proving that the action of the defendants is unconstitutional. From the evidence of the claimant he has admitted absence without leave, he tried to justify the absence by stating that his pregnant wife was seriously ill and he had to go to take care of her medical need. He further stated that he had to convey her to the village but on the way she passed on. The defendants felt this claim in not enough to exonerate the claimant from blame.

80. I note that the claimant apart from ipse dexit has not tendered any document to buttress the claim of illness of his late wife. There was also nothing to establish that the claimant’s wife actually died as claimed. In the absence of concrete evidence to support the claim of ill-health of the claimant’s late wife and evidence of her death, I quite agree that the claimant has not justified his absence without leave.

81. From the final written address the counsel for the claimant had referred to sections 123 and 117 of the Armed Forces Act and submitted that there is infraction of these sections by the defendants. According to counsel there was no investigation of the charges against the claimant. It was also submitted that the claimant was not given opportunity of electing to be tried by a court martial before he was subjected to any summary trial, if there is any.

82. What counsel had done is to give evidence in the final written address. The law is trite that written address is meant to guide the court on what the position of party based on the pleading and law. An address of counsel should not be used by counsel to bring new facts not pleaded. The submission of counsel on investigation of charges and not giving the claimant opportunity of electing to be tried by court-martial were not pleaded in the circumstances the counsel is not allowed to give evidence in the final written address. See Egom v. Eno (2008) 11 NWLR (pt1098) 320 at 343 para. H-B; where the Supreme Court held that:- "Parties are bound by their pleadings and so is the court. Any fact pleaded upon which no evidence is adduced is deemed abandoned, just as evidence led in respect of a fact not pleaded goes to no issue. See also Aregbesola v. Oyinlola (2011) 1 NWLR (pt1253) 494. In Obodo v. Stafford Olomu & Anor. (1987) 6 SC 134 at 193-194; per Rhodes- Vivour JSC succinctly put it thus: "No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in Court. The main purpose of an address is to assist the Court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice, This is so whether counsel addresses a Court or not the Court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment." See also Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) p. 787; N.E.W. Ltd v. Denap Ltd (1997) 10 NWLR (Pt. 525) p. 481 Okuleye v Adesanya (2014) 6-7 SC (Pt. 1) p. 1." 

83. Therefore, the submission of counsel in respect of facts not pleaded goes to no issue and ought to be disregarded by the court. In this case the claimant did not plead absence of investigation of charge or absence of giving him opportunity of electing to be tried by court martial. Court cannot apply facts which are neither pleaded nor proved. See Dalko V UBN Plc (2004) NWLR (Pt.862)123, Emegokwue V Okadigbo (1973) 4 SC 113.

84. It must always be remembered that pleading is what circumscribed the extent of case put forward by the parties. Pleading seeks to sufficiently put the parties on notice about the exact claims so as not to overreach either of the parties. Parties are bound by their pleading they are not allowed to go outside their pleading to make a new case before the court. As the counsel for the claimant is seem to be doing in his final written address.

85. The main relief of the claimant is for a declaratory relief which is a discretionary remedy which is not granted as a matter of course and the court must be satisfied before granting it that the plaintiff or claimant has a very strong and cogent case both from his statement of claim and from the evidence he adduces in support thereof. The claimant must satisfy the court that under all the circumstances of the case, he is fully entitled to the discretionary reliefs in his favour, when all facts are taken into consideration. Declaratory reliefs are obtained on the basis of very strong and cogent case contained in the claimants’ pleadings and evidence led in support. It is for the claimant to satisfy the court that under all the circumstances of the case he is fully entitled to the discretionary reliefs he urges in his favour. The claimant succeeds on the strength of his case alone and never by virtue of the weakness of the defendants’. See Egbunike v. Muonweoku (1961) 1 SCNLR 97; Artra Industry Nigeria Ltd v. N.B.C.I. (1998) 4 NWLR (Pt. 546) 357; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Odulaja v. Haddad Ltd. (1973) 11 SC 357; Dumez (Nig.) Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello v. Eweka (1981) 1 SC 101; Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556; Makanjola V Ajilore (2001) 12 NWLR (Pt.727) Akinboye V Babatunde (2018) 7 NWLR (Pt. 1618) 366.

86. The law has always been that a claimant has the primary duty to prove his claim first and the Evidence Act, requires and enjoins the claimant, as he who asserts, to prove his assertions. Even where the defendant has failed to file a statement of defence, it is still the duty of the plaintiff, if he is to succeed in the case, to lead satisfactory evidence to warrant the grant of declaratory or equitable reliefs in his favour. The claimant in this case by his pleading and evidence before the court has shown that he absented himself as accused by the defendants. Having admitted travelling out of his station without permission, can the claimant now turn round to claim that due process was not followed in sanctioning him for absenteeism? The answer is a capital NO. With the admission of absence without leave or permission, the claimant cannot be said to have proved entitlement to grant of relief 1, to declare the dismissal of his regiment unconstitutional, null and void. The admission of absenteeism by the claimant clearly goes to show that the claimant has failed to discharge the burden of proof to entitle him to relief 1. I am not satisfied that the claimant is entitled to the declaration being sought.  See Bello v. Eweka (1981) 1 SC 101; Orji v. Emovon (1991) 1 NWLR (Pt.168) 476; Titilayo v. Olupo (1991) 7 NWLR (Pt.205) 519; Onu v. Agu (1996) 5 NWLR (Pt.451) 652.

87. I must make it clear that the claimant in this suit will not be allowed through the medium of final written address bring new facts which have not been pleaded in the original pleading. And there was no reply filed by the clamant to the defendants’ statement of defence. The claimant by failing to file reply to counter and contradict the defendants’ averment has exposed the weakness of the case of the claimant.

88. From evidence of the claimant under cross examination the claimant contradicted his averment in paragraph 5 of the statement of facts and paragraph 5 of the witness statement on oath, which he adopted as his evidence in proof of his case. The claimant stated under cross examination, thus:-

‘‘I took permission from my Divisional officer. I went to my Commanding officer and took permission. No written permission, it was oral. I was not on duty I was on course. You are not right to say my CO did not give me leave. I was in the office he did not answer me. I was dismissed on 4/7/2008. The reason of my dismissal is absence from work. It was one time it was April and I returned in May. I took my wife home, I was absent from 24/4/2008 and came back  May, 26, 2008. I was not tried. They collected my shoes. I was in the guard room. I was marched out’’.

89. It is patently clear from the foregoing that the claimant in his bid to prove his case, contradicted his pleading and evidence with his evidence under cross examination. Therefore, the evidence given by the claimant has lost its value as a result of the conflict. This has portrayed the claimant not to be straight forward person and his evidence cannot be relied on, he seems to be approbating and reprobating, which is not allowed in law. The claimant has contended that his divisional officer maliciously refused to grant him permission on one hand and under cross examination he stated that his divisional officer granted him permission orally. The two contradictory evidence cannot co-exist, they cannot establish any case.

90. Parties are bound by their pleadings. Where the evidence led by a party as in this case is contrary to his pleadings, being the foundation on which the case was erected, the compound conflict can result in nothing less than the breakdown of the case for the plaintiff as set out in the pleading. There is no better evidence against a party than one from a witness called by him who gives evidence contrary to the case of that party. This is because the party is calling the witness to testify in favour of his case as pleaded in his pleadings. In the instant case, the evidence of the claimant who testified in proof of his case contradicted his pleading. Consequently, the foundation on which the claimant rested his case was totally eroded. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393; Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283; Omitola v. Owoade (1988) 2 NWLR (Pt. 77) 413; Abaye v. Ofili (1986) 1, Silva V INEC (2018) 18 NWLR (Pt. 1651) 310: S.C. Dabo V Abdullahi (2005) 7 NWLR (Pt. 923) 181: S.C.

91. The position of the claimant in stating that he was not tried seems to have gloss over the position of the law regarding summary trial. The law is well settled that cases that summary trial is any proceeding by which a controversy is settled, case disposed of, or trial conducted in a prompt and simple manner, without the aid of a jury, without presentment or indictment, or in other respects out of the regular course of the common law. In procedure, proceedings are said to be summary when they are short and simple in comparison with regular proceedings. This means summary trials are short and fast. Cases tried summarily are disposed in a prompt and simple manner. Summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevi manu. In summary trials, it is not all the evidence relied on by the prosecution that is made available to the accused person before trial. See Ikpekhia v. F.R.N. (2015) 7 NWLR (Pt. 1457) 200; Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1;  Emirate Airline v. F.R.N. (2015) 7 NWLR (Pt. 1457) 87.

92. In view of the nature of the trial the claimant was not denied fair hearing as he want this court to believe. I so hold.

93. In view of all I have been saying above the facts as disclosed in this case shows that there was a criminal trial of offence of absence without leave contrary to section 59 of the Armed Forces Act. The trial was done summarily, the claimant who was the accused person was found guilty and an award of dismissal of regiment was passed on him as punishment. See exhibits DWA, DWB1-6, and DWC. The finding of guilt and award of dismissal of regiment being a verdict in criminal trial conducted summarily cannot be overturned through an action commenced via a general form of complaint. If there is valid process to contest such proceeding, it has to be by way of appeal or use prerogative writ.

94. The law is that the procedure for discipline in an employment with statutory flavour must be complied with; otherwise, the dismissal ensuing thereof will be null and void. See Longe v. FBN Plc [2010] LPELR-1793(SC); [2010] 6 NWLR (Pt. 1189) 1 SC, And by Oloruntoba-Oju & ors v. Abdul-Raheem & ors [2009] LPELR-2596(SC); [2009] 13 NWLR (Pt. 1157) 83 SC, in the matter of discipline of an employee whose employment has statutory flavour, the procedure laid down by such statute must be fully complied with; if not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void.

95. However, in the case at hand absence without leave contrary to section 59 of the Armed Forces Act, is a serious criminal offence under the Armed Forces Act, that can only be tried in a competent criminal court or a tribunal set up under the law or Constitution. This is so because the determination of the guilt or innocence of any person accused of the commission of a criminal offence is within the exclusive jurisdiction of a court of law or tribunal constituted in the manner prescribed under the law or Constitution. See Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675; Egwu v. University of Port Harcourt (1995) 8 NWLR (Pt.414) 419.

96. In the present case the process leading to dismissal of regiment of the claimant was not in the exercise of disciplinary proceedings, it was based on criminal proceedings. The dismissal of regiment was an award by the commanding officer of the claimant in the exercise of the power of summary trial.

97. From my finding after appraisal of the pleadings and evidence adduced by the parties, I came to the irresistible conclusion that the claimant in this case has not convinced the court of his entitlement to grant of declaration being sought due to lack of concrete, cogent and compelling evidence that will enable granting of the relief of declaration. The remaining two reliefs are ancillary dependant on grant of the declaration the declaration having failed the ancillary reliefs must also fail.

98. In the circumstances, the case of the claimant crumbles like packs of cards, due to lack of proof and is hereby dismissed.

99. I make no order as to cost.

100.                     Judgment is entered accordingly.

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Theodora Ifedi, Esq; for the defendants, appearing with Joy Ayara, Esq;