Major General Ovo Adhekegba V. The Honourable Minister Of Defence & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment)

This appeal emanates from the decision of the Federal High Court Abuja before Hon. Justice M.G. Umar, delivered on 10th March, 2010.

By an amended originating summons dated 28th May, 2008, the Plaintiff, now Appellant before this Court sought for the determination of the following questions-

“1. 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 and letter dated 14th March, 2008 was not inconsistent with the Plaintiffs right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act Cap 20 Law of the Federation of Nigeria 2004.

2. 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 A20, Laws of the Federation.
3. Whether the Army Council under Section 9 of the Armed Forces Act Cap. 20 Laws of the Federation of Nigeria 2004 and the Constitution of the Federal Republic of Nigeria, 1999 has the power to remove compulsorily, retire and terminate the commission of the Plaintiff or any officer of the Nigerian Army.”

The Appellant sought for the following reliefs: –

1. A declaration that the Nigerian Army council as presently constituted is unconstitutional, illegal and cannot remove, retire or terminate the commission of the Plaintiff under the Armed Forces Act Cap A20 Laws of the Federation. 2004.
2. A declaration that the findings and decisions of the Nigerian Army Council at its meeting of February 11, 2008, to the effect that the Plaintiffs conduct over the time has been prejudicial to military discipline, therefore, should resign his commission or be compulsorily retired, is in violation of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is void and without any legal effect.
3. A declaration that the purported removal, retirement and termination of the commission of the Plaintiff by letter dated 14 March, 2008 when litigation is pending is not in accordance with the Armed Forces Act, Cap A20, laws of the Federation, 2004 and the Constitution of the Federal Republic of Nigeria,1999.
4. A declaration that full compliance with Section 18 of the Armed forces Act with respect to the appointment of Chief or Army Staff (4th Defendant) is mandatory.
5. A declaration that the 4th Respondent cannot exercise the powers and authority of the office of the Chief of Army staff until the National Assembly confirms his appointment to the said office.
6. An order setting aside, nullifying and putting away the decision of the Nigerian Army Council made on February 11, 2008, contained in a letter reference number NA/226/MS dated 11th February 2008 and being inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 and the Armed Forces Act.
7. An order of injunction restraining the 4th Defendant from continuing to perform the function of the office of the Chief of Army Staff, occupy the office, participate in the function and exercising the powers of the office, and from participating in the functions and exercising duties as a member of Nigerian Arm Council, from parading himself, presenting himself, introducing himself to any person(s) or authorities until the mandatory provisions of Section 18 of the Armed Forces Act are fully complied with.
8. A declaration that no commissioned officer of the Nigerian Army can be forcefully removed or retired by reason of “service no longer required” as the reason and therefore is inconsistent with the Armed Forces Act Cap 20 Laws of Federation of Nigeria, 2004.
9. An order setting aside, nullifying and render ineffective letter reference NA/226/MS of 14th March, 2008 being ultra vires the Respondents, illegal, null and void.

See pages 103 – 106 of the Record of Appeal.

The action was commenced against the Respondents in the following order:-

1. The Nigerian Army Council
2. The Honourable Minister for Defence (Federal Republic of Nigeria)
3. The Chief of Defence of Staff (General O.A. Azazi)
4. The Permanent Secretary, Ministry of Defence
5. The Chief of Staff (Lt Gen. C. M. Yusuf)

The Appellant was a Major-General in the Nigerian Army. On 11th February 2008, the Army Council met whereby a member raised an allegation of commission of criminal offences bordering on disciplinarian grounds against him. The Council without hearing him wrote a letter Exhibit ‘OVO1 dated 11th February 2008, to withdraw his commission or be compulsorily retired not later than 10th March 2008 otherwise the Council may compulsorily retire him. He contended that the Council was not properly constituted as the 4th Respondent had not been confirmed by the National Assembly as required by law.

The 1st, 2nd and 5th Defendants did not file any counter affidavit to oppose the depositions in the affidavit in support of the originating summons. The 3rd and 4th Defendants challenged the competence of the Plaintiff’s case on the ground that the condition precedent enshrined in Section 178(1) of the Armed Forces Act was not complied with before the commencement of the suit in court. They maintained, though without conceding that the 4th Defendant was not a valid member, that the Army Council was well constituted with a quorum to take valid and enforceable decisions as taken in the letter of 11th February 2008. The 1st, 2nd and 5th Respondents on point of law also supported the contentions of the 3rd and 4th Respondents.

On 10th March, 2010, the lower court dismissed the Appellants case on the ground that the Appellant did not satisfy the condition precedent under the Armed Forces Act before the commencement of his suit.

Being dissatisfied with the decision of the lower court, the Appellant filed two separate Notices of Appeal, on 21st May 2010 and 7th June 2010 respectively. The first one filed on 21st May, 2010 was abandoned leaving the one filed on 7th May 2010 as the extant Notice of Appeal. The Record of Appeal was duly transmitted to this Court on 3rd June 2010. The Appellant’s Brief, settled by Chief (Mrs.) V.O. Awomolo was filed on 7th June 2010. The Respondent’s brief was filed, by Muhammad Danjuma Alhassan, Chief Legal Officer, Ministry of Defence, Abuja on 30th of August 2010. On 14th September 2010, the Appellant filed a Reply to the Respondent’s Brief of Argument.

At the hearing of this appeal, Chief A. S. Awomolo (SAN) appeared for the Appellant. While adopting the Appellant’s Brief of Argument, the learned senior counsel mentioned that the Respondents’ Brief of Argument was filed out of time. There was no representation for the Respondents even though records of the court showed that the Respondents were duly served with hearing notice on 14th November 2012. Nevertheless, the Respondent’s Brief was deemed adopted and argued.

The Records in the court registry show that on 14th June 2010, one Nwanze Ebuka, Esq., from the Chambers of the Appellant’s counsel undertook to serve the Respondent with the Appellant’s Brief of Argument. However, there is no proof of service to show when it was served. Ordinarily, when a brief of argument has been filed out of time, the consequence is that such a process must be deemed not to have been properly filed. It follows that every submission based on such a process must be discountenanced. – UBN LTD v. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR [pt.421] 558 at 576 paragraphs E – F. However, since there is no concrete evidence to prove that the Respondents’ Brief was filed out of time, I will consider it as properly filed and consider the issues adumbrated therein.

Two issues were distilled from the grounds of appeal by the Appellant for determination:-