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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: JULY 9, 2015 SUIT NO: NICN/LA/466/2012 BETWEEN Abubakar Ali - Claimant AND 1. The Chief of Army Staff 2. GOC, 81 Division, Lagos - Defendants 3. Attorney General of the Federation REPRESENTATION L. I. Ayeki for the Claimant. Defendants absent. JUDGMENT This case was transferred to this Court from the Federal High Court. It was filed in that Court in 2008 and transferred to the National Industrial Court by an order of Court issued on 28/6/12 by Abang J of the Federal High Court, Lagos Division. By his statement of claim filed at the Federal High Court dated 30/7/09, the Claimant claims the following - 1. That the dismissal of the Plaintiff with effect from 28 February, 2008 from the Nigerian Army on the ground that they were guilty of assault, conspiracy to commit assault which amount to criminal offence under the Criminal Code without proper trial by a legally constitute Court or tribunal or properly constituted authority in consonance with the Armed Forces Act is a violation of his fundamental rights under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. 2. That the dismissal of the Plaintiff from the Nigerian Army based on the said violation of the fundamental rights of the Plaintiff under Section ... of the Constitution of the Federal Republic of Nigeria is null and void and of no effects. 3. The Plaintiff is entitled to the rights of fair hearing as entrenched in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and cannot be deprived of the said right by the Defendants. 4. That the act of withholding the salary of the Plaintiff and the withholding of the Plaintiff''s salary accounts is unlawful, null and void and of no effect whatsoever. 5. That the Plaintiff be immediately reinstated to their full rights and benefits as soldiers of the Nigerian Army without any further delay. 6. That the prolonged detention of the Plaintiff is unlawful and therefore an infringement on the fundamental rights of the Plaintiff and that the Plaintiff is entitled to compensation in the sum of =N=2,000,000.00 (two Million Naira) for the unlawful violation of his rights. The facts of this case as deducible from the pleadings filed are that the Claimant was at all-time material to this case a person subject to service law working and resident at Ojo Military and in that capacity was deployed as Intelligence Operative therein; that Major Des-Dokuboh was the second-in-command of 149 Battalion and in that capacity was in charge of the finances of the Unit Officers Mess, Allocation of Mammy Market and other stores, and collection of rents from such stores and business premises within the cantonment; that the Major used that position to allocate stores to friends at ridiculously low rents; that one of the beneficiaries of such underserved favour was one Mrs. Patience Osiogbhele (wife of a Soldier who was also dismissed and) whose younger sister, Racheal, was Major Des-Dokuboh’s girl friend; that Mrs. Osiogbhele got huge complex (formerly soldiers club) for a paltry sum of Two Thousand Naira monthly as rent. Claimant added that when Lt. Col. C.C Owhonda took over command of 149 Battalion, he did not like what he met and he immediately took steps to effect changes; that Major Owhonda relieved Major Des-Dokuboh of the responsibility of allocating stores and collecting rents there from and also instituted a probe (audit committee) into the accounts of the officers’ mess; that Lt. Col. C.C. Owhonda ordered the Unit Quarter-Master to review the stores rents upward depending on size and location; that in the process, the soldiers club complex for which Mrs. Osiogbhele was paying Two Thousand Naira monthly and other similarly large complexes were increased to Twenty Thousand Naira monthly; that this did not go down well with Cpl. Godwin Osiogbhele’s wife and Major Dokuboh; that in particular, Major Dokuboh felt threatened and took the actions of the Lt. Col. Owhonda as an affront on his person and decided to fight back using the Cpl. Godwin Osioghele’s wife, her sister Racheal and the Claimant; that Major Dokubo held a meeting with some Soldiers including the Claimant at which a dastardly plan was hatched to rope Lt. Col. Owhonda into a make-believe sex scandal; that Major Dokubo gave Mrs. Oshiogbele’s a miniature tape recorder to be used to trap Lt. Col. Owhonda into amorous discussion that he also gave Sgt. Courage a digital Camera and taught him how to use it; that Sgt. Courage recruited three others (Claimant, Cpl. James Aruwa and Lcpl Grema Abba) into the conspiracy to assault and disgrace their own Commanding Officer; that on the appointed day (29th November, 2007) around 8pm, the Claimant together with other conspirators hid themselves at a lonely spot in the cantonment, while one of the Soldiers' wives went to meet Lt. Col. Owhonda at his temporary accommodation in 149 officers mess; that at the mess, she pretended that she came to beg Lt. Col. C.C. Owhonda to extend the time within which to pay the rent increase and then she veered into erotic discussions in order to get the officer’s voice into the miniature tape recorder she concealed in her brazier that not finding Lt. Col. Owhonda response directly implicating, she told him that the Okada which brought her had gone and begged him to drop her in her shop and Lt. Col. Owhonda obliged her. It was fact of the case that at the place where her fellow conspirators were waiting in hiding, she told the unsuspecting Lt. Col. Owhonda to stop for her to come down and as the car stopped, she perfidiously pretended that something fell from her hand and kept searching the floor of the car just to give her gang enough time to catch up with them; that the conspirators emerged from darkness, pounced on Lt. Col. Owhonda, dragged him out of his car and beat him to a pulp, stripped him to pant and handcuffed him while Sgt. Courage repeatedly photographed him; that they then bundled him into his own car which was now driven by Cpl. Godwin Oshiogbele and took him to the Military Police, Apapa. Sgt. Courage and other conspirators followed in the Claimant’s car; that the tide turned against them when someone who saw Major. Dokubo and his girl friend Racheal gleefully watching the assault and disgrace of the Lt. Col. Owhonda from a comfortable distance in the distance suspected a set-up and promptly alerted the Military Police by phone; that the Military Police immediately arrested the conspirators and when they were questioned as to how they came by the handcuff used on Lt. Col. Owhonda, they had no answer; that a search in the Claimant’s car, revealed the miniature tape recorder and digital camera; that the conspirators told the Military Police that both items belonged to Major Dokuboh; that the Military Police then took the badly beaten Lt. Col. Dokubo to Military Hospital for treatment; that when soldiers of 149 Battalion heard that their Commanding Officer was stripped naked, beaten, handcuffed and taken out of the Cantonment, law and order nearly broke down but for the timely intervention of the GOC (Major General Ihejirika) who set up a high powered Board of Inquiry headed by Brig-General AAG Olonisakin; that the Claimant and their co-conspirators were tried summarily in accordance with the Summary Jurisdiction vested in Commanders by section 116 of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004 and the Claimant was found guilty and dismissed from the Nigerian Army. The hearing of this case commenced on 18/2/14 when the Claimant testified in his case as CW1. CW1 adopted his witness statements on oath dated 7/8/09 as well as the one dated 22/9/10 as his evidence in this case and tendered 7 documents as exhibits. The documents were admitted and marked as Exh. C1 - Exh. C7. Under cross examination, the witness stated that he joined the Nigerian Army 10/8/92 as a National Guard; that he was subject then to service laws; that he served approximately 17 years before being dismissed on 8/2/08 as a Corporal in the Nigerian Army; that he was not tried by a Court Martial and that he was not tried summarily or by Summary Trial. Witness stated that he knew Sergeant Courage Corporal G. Abba & Corporal Godwin; that they were all detained in the same detention but in separate rooms; that when going to give evidence they were not moved together; they were both handcuffed and leg cuffed; that he is not aware that Lt. Col. Owhonda Cantonment Commander was abducted and beaten; that he was aware that Lt. Col. Owhonda was taken to Apapa but not beaten and that he was at Apapa then Corporal Godwin, Sergeant Courage and Corporal G. Abba were at Apapa at the time. It was also the testimony of CW1 under cross examination that he was not there when the Cantonment Commander was stripped naked or handcuffed; that he did not see him handcuffed; that he is not aware that one Sergeant Courage was taken the Cantonment Commander’s photographer; that he is not aware that the wife of Godwin wore a Tape Recorder to record conversation with the Cantonment Commander; that the handcuffs used on the Commander and other materials were not found in his car; that himself, Corporal Gramma Abba and Sgt. Courage were Intelligent Agents at Ojo Cantonment and that a Board of Inquiry was set up by the GOC 1 Division at which he gave evidence. Claimant stated further that he told the Board of Enquiry that he was attending a Church service on the evening of the incident; that he was personally given a Certificate of Excellence by the Interim President of Liberia; that the Certificate was not given to everybody; that the Cantonment Commander was his Commander; that it was not proper to strike a Superior Officer; that he was Corporal in 2008; that his salary was N17,019.00 per month and that he owned a Honda car purchased with his United Nations Allowance. On 10/6/14, the Defendants entered into their defence and called one Captain Abidemi Ogidan as its DW1 who simply adopted his written witness statement on oath dated 6/9/10 as his evidence in chief. Under cross examination, DW1 testified that he knew C.C. Owhonda who was his Commanding Officer at the time of the incident and also the Cantonment Commander at Ojo; that he could not remember the first time he met the Claimant in this case; that he could not remember if it was morning, afternoon or night and that he could recognize the Claimant in the Court room now. DW1 added that he was part of the team that investigated alleged assault on C.C. Owhonda; that the Claimant was in 353 Artillery Regiment Ojo Cantonment Lagos; that he could not remember the name of the Commanding Officer of 353 at the time; that he could not remember the name of the Garrison Commander who tried the Claimant; that Brig-Gen is higher than Colonel; that he does know the outcome of C.C. Owhonda’s Court martial; that as a child in Secondary School he had lied before; that he knows Major Dokubo and that he did not lie to him. On 12/11/14, the Defendants called one Lt. Col. H. U. Ande as their DW2. Witness adopted his written witness deposition dated 10/7/14 as his evidence in chief. Learned Counsel to the Claimant tendered a document through this witness which was admitted and marked as D1. The case for the Defendant in brief is that the Claimant, an individual subject to Military Law was found involved in insubordinate conduct to a superior officer contrary to military law and regulations; that a Board of Inquiry was set up to investigate his insubordinate conduct at which he attended and gave evidence and was recommended for disciplinary action; that the Claimant was subsequently tried summarily and found guilty of the offence charged; recommended for dismissal and eventually dismissed. Under cross examination, witness stated that it is not true that he intended by his oath to confuse the Court about what goes on in the Army; that his deposition on oath is not his opinion but rather exactly what happens in the Army; that the Nigerian Army is a law abiding institution; that both the Constitution and the Armed Forces Act 2004 regulate the Nigerian Army and that the Army abides by this 2 legislation. testifying further, witness stated that every accused person in the Army must hear the case against him and call witnesses in his defence; that from the available records in the file he is seised of the case to that extent of what he read about the charges and the verdict in the files and that in summary trial there are no records. According to the witness, it is not true that the Claimant was not allowed to defend himself; that every accused person in the Army is given opportunity to defend himself; that from the record there were witnesses who testified against the Claimant as an accused; that he does not have their record here; that it is absolutely not true that he does not understand the proceedings in the Army; that Exhibit D1 is not record of proceedings; that it is merely an administrative process and that in the instant case there was compliance with natural justice and fair hearing. At the close of the case, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of Court for adoption. The final written address of the Defendants, a 19-page document was erroneously dated 28/11/12 and filed on 1/12/14. In it, learned Counsel set down the following 3 issues for determination - 1. Whether the offences by which the Claimant was found guilty and dismissed from the Nigerian Army were in fact committed by the Claimant having regard to record and the evidence before this Court. 2. From the evidence before the Court, whether the Claimant who testified as a witness can be described as witness of truth whose evidence should be believed. 3. Whether the Claimant was in fact tried, convicted and dismissed as required by the Law. On issue 1, learned Counsel submitted that the offences for which the Claimant was tried are punishable under the Armed Forces Act; that it is trite that a Court has jurisdiction to resolve conflicts in evidence by resorting to to documentary evidence in the records citing Anammco v. First Marina Trust Limited (2000)1 NWLR (Pt. 640) 309; that if there were no allegations there would have been no need for the Board of Inquiry and that the proceedings of the Board of Inquiry and other investigations concluded that offences were committed and recommended that certain set of soldiers including the Claimant be disciplined, citing Exh. C7. According to learned Counsel, the evidence of the Claimant also supports the claim that he was at the scene of the crime and actively participated in same. Counsel urged the Court to resolve this issue in favour of the Defendants. On issue 2, learned Counsel submitted, citing Monoprix Nigeria Limited v. Okenwa (1995)3 NWLR (Pt. 383) 325 that no witness is entitled to the honour of credibility when he has two materially inconsistent evidence given on oath by him on record. Learned Counsel referred to various differences between the testimonies of the Claimant during trial at the Federal High Court and trial before this Court and urged the Court to hold that the Claimant is not a witness of truth. Issue 3 is whether the Claimant was tried, convicted and dismissed in accordance with the Armed Forces Act learned Counsel referred to paragraph 12 of the Claimant's statement on oath where Claimant stated that he was tried only by the Garrison Commander without any witness giving evidence against him and paragraph 38 of the statement on oath. Counsel also referred to page 4 of Exh. C4, Exh. D1 and Exh. C7 as well as the testimonies of both witnesses for the defence. Learned Counsel submitted that there is no discrepancy in the evidence led by the Defendants and that if any it must be attributable to human error especially in the face of evidence to the fact that the charge sheets are the primary documents for trial while others are purely administrative which in any event cannot vitiate the trial or allow a guilty person to escape justice. Learned Counsel urged the Court to resolve this issue in favour of the Defendants. Claimant's final written address was filed on 27/1/15. In it learned Counsel for the Claimant identified and set down the following 2 issues for determination - 1. Whether the purported dismissal of the Claimant from the Nigerian Army is unlawful, null and void in light of the failure of the 1st and 2nd Defendants to comply with the provisions of the 1999 Constitution, Armed Forces Act and the Rules of Procedure (Army) 1972 in the trial leading to the said dismissal. 2. Whether or not the principle of natural justice was observed in the purported trial of the Claimant. Arguing issue 1, learned Counsel submitted that 1st and 2nd Defendants failed to comply with the provisions of sections 121, 122, 123 and 124 of the Armed Forces Act Cap. A20, Laws of the Federation of Nigeria, 2004 before Claimant was dismissed. Counsel, relying on the statement on oath of DW1 submitted that the Claimant was not tried by his Commanding Officer in line with the provisions of Sections 123 and 124 of the Armed Forces Act and that the Act did not create any exception or circumstances that soldier charged with an offence should not be tried by his Commanding Officer for convenience or search of neutral body and that any other proceeding before any other body or authority other than the Commanding Officer of the Claimant is null and void. Counsel added that Rules 10, 19 and 20 of the Rules of Procedure (Army) 1972 were also breached in the matter of the Claimant. According to learned Counsel, there is admission by the Defendants that the Claimant was not tried by the Commanding Officer of his Unit in the vein search of neutral body; that the defence of the Defendants in this case stands and falls on whether the Claimant was tried by the Commanding Officer of his Unit and that the failure of the 1st and 2nd Defendants to adhere to the provisions of the Armed Forces Act in the trial and subsequent dismissal renders the act unlawful, null and void and therefore of no effect. He urged the Court to so hold. On issue 2, learned Counsel submitted that Rules 10, 19 and 20 of the Rules of Procedure (Army) 1972 provide for the investigation of and summary dealing with charges by an appropriate superior authority create a safeguard for fair hearing in the investigation and subsequent trial of a soldier of an alleged offence by his superior officer. According to Counsel, not complying with the said Rules of Procedure (Army) 1972 robbed the process of the required fair hearing in the investigation and the alleged subsequent trial of the Claimant by the 1st and 2nd Defendants. According to Counsel, Lt. Col. C.C. Owhonda was the Cantonment Commander and different from Col. S.M. Olasiegbe who was the Commanding Officer of the Artillery Regiment, that the latter was higher in rank and senior to Lt. Col. C.C. Owhonda who was allegedly assaulted and that Col. S.M. Olasiegbe was the appropriate superior authority and the Commanding Officer to try the Claimant in line with sections 123 and 124 of the Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004. Learned Counsel urged the Court to hold, in the absence of any proof to the contrary, that there was no proper trial of the Claimant by the 1st and 2nd Defendants and that the dismissal of the Claimant from the Nigerian Army is unlawful, null and void and therefore of no effect whatsoever. In a reply address filed on 3/2/15, learned Counsel pointed out that Lt. Col. C.C Owhonda was the Cantonment Commander who was supposed to try the Claimant as his Commanding Officer because the offence was committed in his area of responsibility; that he could not because he was the subject of the whole assault and that that was the reason for sending the Claimant to the Garrison Commander for trial. Learned Counsel urged the Court to hold that the Claimant apart from admitting to the commission of the crime was properly tried, convicted and sentenced. Counsel concluded that to reinstate a Soldier who took pride in assaulting his superior officer to the extent of handcuffing him will be setting a very dangerous precedent in the Armed Forces. I took time to read all the processes (including the final written addresses of Counsel) filed by learned Counsel in this case and I understand them all. I reviewed and evaluated all the exhibits tendered and admitted in this case and listened with attention to the testimonies of all witnesses called at trial in addition to watching their demeanor. Having done all this, I here set down 2 main issues as follows for the just determination of this case - 1. Whether the Claimant was dismissed in accordance with the service law and procedure to which he was subject. 2. Whether the Claimant has proved his case to be entitled to the reliefs sought or any of them. A major contention of the Claimant is that his dismissal from the Nigerian Army was unlawful and hence null and void. One is tempted to state that members of the Armed Forces are rather special specie of the Nigerian society. Special in the sense that they are subject to a rather different legal system especially in the area of discipline. The Armed Forces is a highly regulated and regimented institution with command structure and since members of that institution joined voluntarily, they can hardly complain if and when the peculiar law applicable to them is applied. The Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004 is a comprehensive legislation regulating the Nigerian armed forces comprising of the Army, the Navy and the Air Force. The law provides for legitimacy, structure and discipline in the Armed Forces, see Rear Admiral Francis Eche Agbiti v. The Nigerian Navy (2007) LPELR-4893. Exh. D1 (tendered by the learned Counsel to the Claimant through the Defence witness) contained the statement of offence of the Claimant to be Insubordinate Behaviour, Conspiracy to Commit Assault and Conduct to the Prejudice of Service Discipline. For each of the offences, witnesses were named and the case referred to Garrison Commander for disposal. That exhibit was made in pursuance of Rules of Procedure (Army) 1972 to which the Claimant is subject by virtue of being a member of the Nigerian Army. I also find on page 2 of that exhibit that the Claimant was found guilty by the Garrison Commander Col. C. N. Nwokike and awarded Dismissed Regiment on 22/2/08. Now Exh. C7 is the ''Report of Board of Inquiry Convened by Maj. Gen. O.A. Ihejirika (N/6031) ... To Investigate the Circumstances Surrounding the Assault on Lt. Col, CC Owhonda (N/8559) Commanding Officer 149 Battalion on 29 November 2007''. That Report was dated December 2007 much earlier in time than Exh. D1. Claimant appeared before that Board of Inquiry, made statement and gave further testimony as contained on pages 75-79. The Board of Inquiry on page 6 of Exh. C7 found the Claimant to be one of the 6 individuals who carried out the plot and recommended on page 8 that appropriate disciplinary action should be taken against the officers and soldiers for their involvement in the assault one of whom was the Claimant. Learned Counsel on either side tried to show that the Claimant was guilty of the offences for which he was charged under the military law and procedure. It is important however to reiterate the fact that this Court, the National Industrial Court of Nigeria, is not exercising its criminal jurisdiction in the present case. The focus and concern of the present proceeding and the issue being considered is whether or not the Claimant was lawfully disengaged from the Armed Forces in accordance with the existing military law and procedure. The law is trite that he who asserts must not stop at merely asserting but must support such assertions with credible and admissible evidence, see Access Bank Plc v. Trilo Nigeria Limited & Ors.(2013)LPELR-22945 & Olusanya v. Osineye/Osineye (2013)LPELR-20641. This is because assertions in pleadings do not translate to proof of same and until a party who makes a claim from the Court discharges that evidential burden the Court will not make any award in his favour. The reason being that the Court is neither a Father Christmas nor is it a place to just ask and receive. A major argument of the learned Counsel for the Claimant is that the provisions of sections 123 and 124 of the Armed Forces Act were breached; that the Rules of Procedure (Army) 1972 were not complied with and that the Claimant was not tried by the Commanding Officer of his unit. I examined the relevant provisions as cited. I find no such infraction as argued by learned Counsel especially in the circumstances of the Claimant when indeed Lt. Col. C.C. Owhonda was the appropriate authority or the commanding officer of the Claimant at the time and who though expected to act pursuant to section 124(2) & (5) of the Armed Forces Act was an interested party against whom the Claimant committed the alleged assault. The fact remains that if the commanding officer who was the complainant had tried the Claimant and pronounced on his guilt or otherwise he would have been a Judge in his own cause and thus offended against a major plank of the twin pillars of the rule of natural justice. Perhaps as an addendum I may point out that both laws and rules of procedure are meant for man to operate and utilise to achieve the end of justice. In other words, it is not the other way round in that man is not made for law and procedure. By section 124(2) of Armed Forces Act, Cap. A20 the Claimant was summarily dealt with as the statute allows. It may be as the learned Counsel to the Claimant submitted that Claimant was not tried by his commanding officer. That could not have been for the reasons as stated in this Judgment. In any event, the Legislature in drafting and passing section 124(5) of the Armed Forces Act did not and could not have envisaged a scenario of the commanding officer of the Claimant being assaulted by a subordinate in his Command. It may be a technical point but a rather weak one. The current trend is for the Court to do substantial justice rather than technical justice. In the words of Niki Tobi JSC in Samuel Ayo Omoju v. The Federal Republic of Nigeria (2008)7 NWLR (Pt. 1085) 38, ' ''Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy''. The available evidence before me and especially the exhibits tendered and admitted lead me to no other conclusion and holding than that the dismissal of the Claimant from the Nigerian Army effective from 28/2/08 was lawful and in accordance to military law and procedure to which the Claimant was subject at the time. I resolve issue 1 in favour of the Defendants. On issue 2, the success or otherwise of any reliefs sought by the Claimant is dependent on the determination of whether or not his dismissal was lawful. Therefore having so resolved issue 1 against the Claimant, all the reliefs sought naturally collapse. I have held that the dismissal of the Claimant was lawful and not null and void, I consequently dismiss all the reliefs sought by the Claimant. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge