Chief Of Defence Staff Gen. O. A. Azazi & Ors V. Major Gen. Ovo Adhekegba (2009)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, J.C.A.

This is an interlocutory appeal against the Ruling of the Federal High Court, Abuja delivered on the 28th day of April, 2008 wherein the Court exercised its discretion and granted leave to the Respondent to amend his Originating Summons.

Briefly, the facts of the case are that the Respondent a Major-General In the Nigerian Army received a letter conveying the decision of the Army Council meeting held on 11th day of February 2008, and dated the 11th day of February 2008 from the Appellants who were members of the Army Council.

The letter conveyed the decision advising him to apply for voluntary retirement in line with the Harmonised Terms and Conditions of Service 2007 and his application thereto should reach the 2nd Appellant not later than 10th March 2008 so that the Army Council might not need to consider the Respondent for compulsory retirement.

The Respondent, dissatisfied with the decision of the Army Council appealed to the President, & Commander-in-Chief as required by the army regulations, for a review. When there was no response from the President, & Commander-in-Chief and in order to avoid adverse consequences of compulsory retirement he approached the Federal High Court for interpretation of the Constitution of the Federal Republic of Nigeria and Armed Forces Act. The Respondent took out an Originating Summons for the determination of the following questions:-

1. Whether the Defendants acted properly under the provisions of the Armed Forces Act, Harmonised Terms and Conditions of Service for the Nigerian Armed Forces (Officers) 2007 and the Constitution of the Federal Republic of Nigeria, 1999, when they considered matters relating to the Plaintiff at the meeting of February 11, 2008 and resolved that the Plaintiff resigns his commission or be compulsorily retired with the consequence of forfeiture of 6 months salary on compulsory retirement.
2. Whether the Defendants’ conclusion at the meeting of February 11, 2008 concerning the commission of the Plaintiff which resulted in the decision contained in the letter of February 11, 2008 was not inconsistent with the Plaintiff’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether the composition of the Army Council which met on February 11, 2008 deliberated and resolved that the Plaintiff resign his commission on disciplinary grounds was not in violation of the Constitution of the Federal Republic of Nigeria, 1999, and the Armed Forces Act Cap. A 20 Laws of the Federation.

While the matter was pending before the Court, the Appellants issued another letter dated the 6th day of March 2008 so as to convey the correct decision of the Army Council meeting of 11th February 2008. As a result the Respondent applied to amend the Originating Summons by substitution of the letter of 11th February 2008 with that of 14th March 2008 and addition of two declarations.

The application for amendment was opposed by the Appellants but it was granted by the Court.

Dissatisfied with the said Ruling the Appellants now appealed to this Court.

The Learned Counsel for the Appellants formulated two issues for determination as follows:-

1. Whether having regard to the nature of the amendment sought by the Respondent, the Court below was not wrong in granting the Respondent’s application for amendment dated the 13th day of March 2008 and filed on 18th March 2008 (Ground 1, 2, and 3).
2. Whether the Court below was right when it fixed the substantive amended Origination Summons to 28th May 2008 for hearing and directed the parties as to the period within which to file and exchange written addresses, without hearing and determining the Appellant’s Preliminary Objection (Ground 4).

The Learned Senior Counsel for the Respondent also formulated two issues for determination as follows:-

1. Whether the Learned trial Judge acted within the Law and properly on the peculiar facts of this case in granting the amendments.
2. Whether the adjournment of the case for hearing after the Ruling with the concurrence of the Appellant’s Counsel was wrongful exercise of discretion.

At the hearing, the Learned Counsel for both parties adopted and relied on their respective briefs of argument.

The Learned Senior Counsel for the Respondent raised Preliminary Objection on the following grounds:-

(a) The Court lacks jurisdiction to hear the appeal.

Particulars – Grounds 1, 2, 3 & 4 in the Notice of Appeal violates Section 241 of the Constitution of the Federal Republic of Nigeria 1999.