The Nigerian Army Vs Warrant Officer Banni Yakubu (2013)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, JSC

This is an appeal against the Ruling of the Court of Appeal, Abuja Division (the court below) delivered on the 9 day of February, 2010 in Appeal No. CA/A/66/M/09. Therein, the court below granted extension of time within which to apply for leave to the respondent to appeal against the decision of the trial General Court Martial (GCM for short) presided over by Col. O. O. Okoro (N/7710) at DHQ Joint Officers Mess Mogadishu Cantonment Asokoro, Abuja delivered on 20/12/07 after overruling preliminary objection on two grounds strenuously urged on behalf of the appellant.

The relevant facts of the matter leading to this appeal are not in serious contention. The respondent was convicted by the G.C.M presided over by Col. O. 0. Okoro (N/7710) on 20/12/07 along with one Warrant Officer Peter Weibey for conspiracy. The verdict of the G.C.M was confirmed on 9/8/2008 and same was published on 13/8/2008. The respondent instructed his solicitors to write letter of appeal to the appellant for a review of his case. There was no response to same.

The respondent then approached the lower court by way of motion on notice pursuant to Order 7, Rule 10 (1) and (2) of the Court of Appeal Rules 2007 wherein he prayed for extension of time within which to apply for leave to appeal against the decision of the G.C.M, leave to appeal and extension of time within which to appeal; often referred to as the trinity prayers.

The appellant raised preliminary objection to the application on two grounds that the respondent had not complied with the condition precedent before approaching the lower court and that the respondents action was statute barred by virtue of the provision of section 2 (a) of the Public Officers Protection Act.

The court below considered the materials placed before it and the submission of counsel on the laws seriously canvassed and dismissed the appellants preliminary objection. The court below thereafter granted the requisite leave to the respondent to appeal against the decision of the G.C.M which found the respondent guilty of conspiracy. The appellant felt dissatisfied with the said Ruling of the court below and has appealed to this court. The Notice of Appeal filed on 23/2/2010 contains two grounds of appeal.

Briefs of argument were duly filed and exchanged by the parties in tune with the Rules of the court. On the 6th of December, 2012 when the appeal was heard, learned counsel on both sides of the divide adopted and relied on the brief of argument, as respectively filed, on behalf of the parties.

The lone issue couched on page 3 of the appellants brief of argument for determination of the appeal reads as follows:-

‘Whether the Court of Appeal correctly evaluated (sic) the law when it ruled that the appeal was properly before their lordships, and consequently dismissed the preliminary objection.’

On behalf of the respondent, the two issues formulated for determination, as contained on page 4 of his brief of argument read as follows:-

‘ISSUE 1

Whether the Court of Appeal judicially and judiciously exercised its discretion in favour of the respondent by granting the reliefs sought and dismissing the appellants preliminary objection (GROUND 1)

ISSUE 11

Whether the matter before the Court of Appeal can be negatively affected by the provisions of section 2 (a) of the Public Officers Protection Act (GROUND 2)’

Arguing the sole issue formulated on behalf of the appellant, learned counsel submitted that the respondent failed to exhaust mandatory condition precedent before initiating his application for leave to appeal against the decision of the G.C.M. He cited the case of Salihu v. Minister of Defence (2009) 1 NWLR (Pt. 1123) 543. Learned counsel maintained that the condition precedent which was not complied with was pointed out and arguments canvassed on same were ignored by the court below. He cited the case of Eguamwemse v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 11.

Learned counsel opined that the respondent, being a military man and subject to service law, ought to have complied with the requirement of the Armed Forces Act, Cap A20 LFN as mandated by the provisions in sections 179 (4) and 184 (5) of same.

Learned counsel contended that the operative word in section 179 (4) of the Act is ‘shall’ which mandates that an aggrieved soldier who desires to exercise his right by way of complaint must first exhaust the administrative remedies before embarking on any other action. He felt that the court below gave the law a narrow interpretation without any justification. Learned counsel cited the cases of Omoijahe v. Umoru (1999) 8 NWLR (Pt. 614) 178 at 188; Niger Progress Ltd. v. NEL Corpn. (1989) 20 NSCC (Pt. 11) 211 at 220; Bakare v. N.R.C. (2007) 17 NWLR (Pt. 1064) 620.

The learned counsel maintained that the court below did not give correct interpretation to the appropriate sections of the Armed Forces Act in arriving at its ruling. He urged that the ruling of the court below be set aside.

On behalf of the respondent, learned counsel pointed it out that it was clearly shown by the uncontradicted averments before the lower court and the exhibits attached to the respondents better and further affidavit that he applied passionately to the Chief of Army Staff for a review of his conviction. He maintained that as nothing was done, the respondent was compelled to approach the lower court. He observed that the letter of appeal was written, pursuant to the provision of section 149 of the Armed Forces Act. Learned counsel referred to pages 48-60 of the record.

Learned counsel for the respondent maintained that the appellant never told the lower court or the respondent what the condition precedent is all about. He submitted that he who asserts must prove same.Learned counsel observed that there was no condition precedent on the respondents way which was not fulfilled.

Learned counsel submitted further that where the respondent chose to apply for review of the sentence as canvassed by the appellant, he was still at liberty to approach the lower court for intervention and at any point he so desired, his application to the Army Authority becomes automatically extinguished. He referred to section 154 (6) of the Armed Forces Act. He felt that the position of the law is a clear demonstration that the doors of the courts can never be shut against a convict to ventilate his disagreement with the decision of the G.C.M.

Learned counsel for the respondent further submitted that the provisions of sections 183-184 (4) of the Armed Forces Act also provide the unfettered discretion to the court below to grant the desired leave to appeal. He observed that the court below judicially and judiciously considered the material placed before it in granting the desired leave as required by Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007. Learned counsel referred to Salihu v. Minister of Defence (supra) at 564.

Learned counsel further submitted that the right of appeal to the lower court from the decision of the G.C.M is constitutionally guaranteed and that any other enactment that tends to derogate from same is null and void. He referred to section 240 of the 1999 Constitution that gives appellate jurisdiction to the lower court which is not subject to any other quasi-judicial outfit. He asserted that there was an amendment to the Armed Forces Act by virtue of Decree No. 15 of 1997 which now gives direct access to the court below from decisions of G.C.M. He again referred to Salihu v. Minister of Defence (supra) at page 573.

Learned counsel further submitted that there are good reasons for the respondents failure to appeal within the time stipulated and that there are substantial points of law to be canvassed at the hearing before the court. He felt that it is desirable for the court below to hear the matter on its merit and that the discretion of the lower court in granting leave to the respondent should not be interfered with by this court.

Learned counsel maintained that apart from the provision of section 240 of the 1999 Constitution of the Federal Republic of Nigeria and Order 7 Rule 10 (2) of the Court of Appeal Rules 2007, section 200 of the Armed Forces Act also provides that an aggrieved person who has been convicted by a G.C.M can apply directly to the lower court for leave to appeal out of time over the decision of the G.C.M.

Learned counsel, in respect of this aspect of the matter, finally cited the case of Cenfral Bank of Nigeria v. Saidu H. Ahmed (2001) 5 SC (Pt. 11) 146 at 162. He urged that issue 1 be resolved in favour of the respondent.

Let me state it in clear terms that by the provision of section 240 of the 1999 Constitution of the Federal Republic of Nigeria, the court below is given exclusive appellate jurisdiction over decisions of the G.C.M. Such jurisdiction is not subject to the whims of any other quasi-judicial body or outfit. The appellant should appreciate this vital point right from the onset.

The appellants counsel strenuously maintained in the brief of argument that the respondent failed to comply with condition precedent before initiating his application for leave to appeal. He relied on sections 179 (4) and 184 (5) of the Armed Forces Act, inter alia.

The appellant did not pin-point clearly the condition precedent which was not complied with by the respondent. The appellant which asserted that condition precedent was not complied with, has the burden to prove same. It is basic that any party which asserts must prove same. Refer to Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 72; Osaware v. Ezeiruka (1978) 6-7 SC 135 at 145; Odukwe v. Ogunbiyi (1998) 8 N WLR (Pt. 561) 339 at 352.

The appellant tried to raise dust when it maintained that the respondent failed to exhaust the available remedies provided by the law before recourse to the court.

It is extant in the record of appeal as can be seen at pages 48-60 of same that the respondent deposed to un-contradicted averments and attached exhibits A and B to his better and further affidavit wherein he applied to the Chief of Army Staff in tune with the law for a review of his conviction by the G.C.M. As nothing was done by the Chief of Army Staff, he was compelled to approach the lower court. The salient averments remain un-contradicted. It is basic that unchallenged evidence stands. The court should accept same and act on it. The court below was on a firm ground in the stand taken by it. See: Omoregbe v. Lawani (1980) at 117, Fasoro v. Beyioku & Ors. (1988) 2 NWLR (Pt. 76) 263 at 271.

Since no action was taken on the complaint of the respondent by the appellant, he was perfectly entitled to approach the lower court for leave to appeal. It does not lie in the sphere of the appellant to turn around and say that the respondent did not exhaust available remedies before approaching the court. Inaction on the part of the appellant to take appropriate step to consider the respondents complaint should not foreclose his right to approach the lower court to ventilate his grievances before the court which is imbued with requisite jurisdiction as dictated by section 240 of the Constitution of the Federal Republic of 1999 (the grund-norm).

Let me now move to the real matter in contention between the parties. The respondent maintained that there are good reasons for his failure to appeal within time and that there are substantial points of law to be canvassed at the hearing before the lower court.

It must be stated here that Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 provides for two conditions which must be satisfied conjunctively. The affidavit evidence must disclose good and substantial reasons for failure to appeal or seek leave to appeal within the prescribed time. The proposed grounds of appeal must show good cause why the appeal should be heard. The grounds must be arguable; not frivolous. See: University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Holman Bros Nig. Ltd. v. Kigo Nig. Ltd. (1980) 8-11 SC. 43.

In the case of Central Bank of Nigeria v. Salihu H’Ahmed & Ors. (2001) 5 SC (Pt. 11) 146 at 162; cited by respondents counsel in the brief, this court emphatically maintained that:-

‘It must be remembered that before an application of this kind could succeed, the applicant must satisfy the court that there are good and satisfactory reasons for not filing his application timeously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal. It is settled that for this court to exercise its discretionary power, an application of this sort must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the court below against which he is seeking to appeal and proposed grounds of appeal against the said judgment or ruling.’

The respondent deposed to the fact that he was not informed of the decision of the Army Authority which confirmed his sentence for the offence of conspiracy and his demotion in rank. He was informed later by his co-accused. The grounds of appeal in the proposed grounds of appeal at pages 9¬11 of the record of appeal appear, prima facie, arguable. There is ground 4 which complains that the Army Authority, contrary to the finding of the G.C.M went ahead to enter a finding of Guilty on the respondent for making false document, punishable under section 90 (d) of AFA Cap. A20 LFN, 2004. To my mind, this is an arguable point.

The court below, resolved issue 1 decoded by the respondent in his favour. I pitch my tent with the court below as it was on a firm stand.

The next point relates to the applicability of the provision of section 2 (a) of the Public Officers Protection Act. The appellant maintained that same applied to foreclose the right of the respondent to approach the lower court for leave to appeal. On his part, learned counsel for the respondent maintained that the law cannot be employed to gag him from exercising his constitutional right of appeal to the court below.

As stated by learned counsel for the respondent, it is basic that courts do guard their jurisdiction jealously and zealously. As such, any enactment which takes away the rights of the citizen accessing the court are to be construed narrowly against any one claiming its benefit.

The appellant who is trying to cling tenaciously to the law put obstacles on the respondents way by failing to react to his complaint in good time. He was subjected to trauma and he fell sick as contained in his affidavit and further affidavit. This court has held in Abacha v. Spiff (2009) 5 SCNJ 119 at 140 that where a party is prevented from bringing an action or denied the opportunity to sue timeously, limitation law will not apply. The position in the case at hand points to the same direction.

Further, the position here is that the respondent desires to enforce his fundamental right of access to the law court to determine his innocence in the conviction meted out to him by the G.C.M. The right, is as dictated by section 240 of the 1999 Constitution of the Federal Republic of Nigeria. It is unthinkable to imagine that the provision of section 2 (a) of the Public Officers Protection Law can be employed to truncate the respondents opportunity to ventilate his grievances to the decision of the G.C.M.

Learned counsel for the respondent referred to the case of Federal Republic of Nigeria v. Chief Udensi Ifegwu (2003) 5 SC 252 at 252 wherein Uwaifo, JSC pronounced as follows:-

‘At this stage, I think I can briefly dispose of the argument in respect of section 2 of the Public Officers Protection Act (Cap 379) Laws of the Federation of Nigeria relied on by the learned Senior Advocate that the respondents action was statute-barred. It would be argument carried too far to say that the Public Officers Protection Act applied to bar a relief sought in connection with an error committed in purely judicial capacity. It does not.

The remedy sought is to enforce a Constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it will likely conflict with court rules—‘

The above remains the stance of this court. I completely agree with same. And by parity of reasoning, there is no way by which the decision of the G.C.M can be covered from being challenged as constitutionally guaranteed by section 240 of the stated Constitution under the feigned canopy of the provision of section 2 (a) of the Public Officers Protection Act.

In conclusion, I am of the considered opinion that viewed from any angle, this appeal is bound to fail. It lacks merit and, it is hereby dismissed. The Ruling of the court below handed out on 9th February, 2010 is hereby affirmed in its entirety.

SC. 107/2010