Major Ekundayo Awoyomi V. Chief Of Army Staff & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment)

This appeal is against the Ruling of the Federal High Court Lagos Division presided over by Ajakaiye J in suit no. FHC/CS/L/291/01 delivered on the 3rd day of June,2010. The learned trial Judge had on the 13th day of December 2006 given judgment in favour of the appellant declaring his retirement from service in the Nigerian Army null and void.

Although during the hearing, the 1st-3rd Respondents were represented by various Government counsel who filed a statement of defence which was subsequently amended, they failed to appear and lead evidence in proof of their defence. The learned trial Judge in his judgment made the following orders inter alia:

1. “The Plaintiff is to be paid his salaries, allowances and all other benefits from the date of his purported retirement i.e. 1990 to date. Furthermore, the period between 1990 and the date of this judgment is to be taken into consideration as having formed part of his service years.
2. I award N50,000.00 damages to the plaintiff
3. I also award cost of N5000.00 to the plaintiff.”

All the efforts made by the Appellant including committal proceedings to get the 1st -3rd Respondents to comply with the Court Orders failed. During the committal proceedings, the 1st-3rd Respondent now briefed a private law firm of A. E. Airende & Co a retainer firm of the 3rd Defendant to take over the case. Eventually the Appellant brought a garnishee application to attach the 1st-3rd Respondent’s account with the 4th Respondent. The amount the Appellant claimed was due to him for which the garnishee application was made amounted to N70,152,003.25 (Seventy million,one-hundred and fifty-two thousand three naira, twenty-five kobo.).

The Appellant in his affidavit deposed that he sought the assistance of the Federal High Court Accounts Department to compute the judgment debt due to him since the Respondents refused to do the computation. An order nisi for this amount was made by the lower court. Before the return date for the order to be made absolute, the Respondents filed a preliminary objection seeking to set aside the Garnishee order nisi for lack of jurisdiction. The Appellant filed a preliminary objection to the appearance of the law firm of A. E. Airende & Co and later a counter affidavit to the Respondents’ preliminary objection.

The Respondents filed a counter affidavit to the Appellants preliminary objection and a reply to their counter affidavit. Both applications were heard together and ruling delivered on 3/6/2010 by Ajakaiye J. holding that the appellant was entitled to the sum of N7,174,951.20 (seven million, one hundred and seventy-four thousand, nine hundred and fifty-one naira twenty kobo) as computed by the Deputy Director Army Personnel Pay Office instead of the N70.152 million as computed by the Federal High Court Accounts Department.

The learned trial Judge was of the view that it is the Respondents- the Military that are in the best position to work out the emoluments and entitlement of the Appellant in accordance with their own scheme which may be unknown to the Accounts Department of the Federal High Court. It is against this ruling that the Appellant has now appealed to this Court.

The Notice of Appeal at page 934 Volume 3 of the Record contains two grounds of appeal out of which the Appellant formulated two issues thus:

1. Whether the law firm of A.E. Airende & Co can lawfully appeal for the Respondents without the fiat of the Attorney General of the Federation and properly bring a preliminary objection on behalf of the Respondents given the role of a judgment debtor in a garnishee proceeding?
2. Whether the failure of the Court to consider the counter affidavit of the Appellant does not vitiate the ruling?

The Respondents in their brief expressed reservations on the issues formulated by the Appellants on the ground that the arguments canvassed in the Appellant’s brief transcended the issues as formulated. In order that their arguments will flow in line with those of the Appellant, the Respondents opted to adopt the issues as formulated by the Appellants. I shall adopt the issues in the determination of the appeal.

ISSUE 1:

Whether the law firm of A.E. Airende & Co can lawfully appear for the Respondents without the fiat of the Attorney General of the Federation and properly bring a preliminary objection on behalf of the Respondents given the role of a judgment debtor in a garnishee proceeding?

The contention of the Appellant on this issue is that whether civil or criminal, a private legal practitioner cannot represent the Government or any of its agencies without the authority of the Attorney-General by way of a fiat. The law firm of A.E. Airenda & Co having failed to produce a fiat from the Attorney-General of the Federation could not lawfully represent the Respondents. Appellant’s counsel relied on Section 150(1) of the 1999 Constitution, Section 56 of the Federal High Court Act and the following authorities: Comptroller Nigerian prison Service & ors v. Femi Adekanya & 17 Ors (1999) 5 NWLR (pt 602) L67; Osahon v. F.R.N. (2003) 16 NWLR (Pt. B4s) 89 @ 120-121 H-B; Emeakayi v. C.O.P. (2004) 4NWLR (Pt. 862) 179; Provost Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476 @ 495 E-A.The Respondents on the other hand contended that there is a distinction in these matters between criminal and civil cases. Learned Counsel for the Respondents argued that while a fiat is required in the prosecution of criminal cases by a private legal practitioner; it is not so in civil cases. Counsel attempted to draw a distinction between Section 56(1) and 56(2) of the Federal High Court Act, Laws of the Federation 2004.

It is necessary to set out the various provisions of the Constitution and other laws referred to by Counsel in their briefs.

Section 174 of the Constitution of the Federal Republic of Nigeria 1999 provides-