Ex-navy Captain O.c. Ibitoye V. The Nigerian Navy Board (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE,?J.C.A. (Delivering the Leading Judgment)

The Appellant by an originating summons dated 29th February 2008, instituted an action in the Federal High Court in Lagos against the Respondent the following:?

1) A declaration that the decision of the Respondent upholding the judgment of the general Court martial is null and void and liable to be set aside since the Appellant was given no opportunity to present a written or other documentary evidence before the Judgment of the General Court Martial was confirmed as required by Section 149 of the Armed Forces Act .

2) An order of this honourable Court setting aside the decision of the Nigerian Navy Board confirming the dismissal of the Applicant from the Nigerian Navy without first giving him the opportunity of making a representation before it as provided for by the Armed Forces Act.?

3) A declaration that the Applicant was given no opportunity to make representation before the Navy Board as required by Section 149 of the Armed Forces Act before the decision of the General Court Martial was confirmed by the Respondent.

?The Respondent filed a motion dated 22nd July

2009 seeking an order dismissing the judicial Review Proceedings of the Appellant for lack of jurisdiction and on the 2nd day of November 2009 filed a counter affidavit to the Appellant’s application for judicial Review wherein the Respondent in its written address raised the issue of the Appellant’s failure to file the originating summons within 3 months. See pages 45 to 47 of the Record of Appeal.

The receipt of the counter affidavit and on the 30th of November 2009, the Appellant filed a motion seeking leave to extend the time within which to file the originating summons dated 29th February 2008 after being served with the counter affidavit of the Respondent.

The Respondent in opposing the Appellant’s application to extend the time within which to file the originating summons filed a counter affidavit dated 8th December, 2009. See pages 73 to 79 of the record of appeal.

The lower Court in a considered ruling on the 24th of February 2010 granted the Appellant’s motion for extension of time to file the originating summons and thereafter parties adopted their respective addresses for and against the Appellant’s application for judicial

Review.

In the ruling delivered on the 12th January 2011 in respect of the originating summons, the Court struck out the Appellant’s application for judicial Review on the ground that the application was not filed within (3) three months as prescribed under Order 34 Rule 11 of the Federal High Court Rules 2001.

This appeal is against the ruling of the lower Court striking out the application for judicial Review.

The Appellant being dissatisfied with the judgment of Honourable Justice I. N. Auta of the Federal High Court, Lagos delivered on the 20th day of January 2011 appealed to this Court vide his notice of appeal dated 4th of April, 2011 at pages 168-170 of the record of appeal, from the four grounds of appeal contained therein, the Appellant distilled the following three (3) issues for determination namely: