CORAM

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CHIDI NWAOMA UWA JUSTICE OF THE COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE OF THE COURT OF APPEAL

MUSLIM SULE HASSAN JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. CHIEF OF AIR STAFF

2. NIGERIAN AIR FORCE

3. THE COMMANDANT, NIGERIAN AIR FORCE MILITARY TRAINING CENTRE, KADUNA

APPELLANTS 

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NASIR ABBAS MAITURARE

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ARMED FORCES, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, LABOUR LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants were the Defendants, while the Respondent was the Plaintiff at the trial Court (Federal High Court sitting at Kaduna). The Respondent claimed before the trial Court that he was admitted into the Nigerian Defence Academy between 2013 and 2018, and upon completing his training, he passed out and became of member of the 66 Regular Course (RC).

That he was nominated by the 1st Appellant for Basic Regiment Officers Course ((BROC) under the Regiment Training Center (RTC), Nigerian Air Force Base, Kaduna. He claimed that during his training, he was involved in some disagreement with his course-mates over which they sought to punish him and brought charges against him before the 3rd Appellant wherein he was summarily tried on 5th May, 2019 and wrongfully dismissed on the 31st of May, 2019, in complete violation of his right to fair trial. He further claimed that the Appellants published a completely different offence from the one the Respondent was dismissed for, and tried for as the reason for his dismissal. The Appellant appealed to the Air Vice-Marshall and upon consideration of his appeal, he was reinstated but relegated to 67 RC as punishment for his offence. The Respondent appealed for a review of his wrongful dismissal and reinstatement, which were not responded to. He also complained that one of those who brought charges against him equally presided over the summary trial in the person of SQN LDR VO Ubah. He was subsequently dismissed again on a basis that his earlier dismissal was reviewed and he was forced out of the Military Training Center.

The Appellants’ case on the other hand was simply that the Respondent is not a member of the regiment he claim and that he is not coursemate to Olatunji Taye and Victor Njoku. That his selection to the course was a mere privilege and not for any special skill. That the Respondent had displayed acts of indiscipline and he ought to know that as a soldier, he could not do that and he was rightly dismissed for indiscipline and he lawfully withdrew from the Nigerian Air force.

The Trial Court granted all reliefs sought by the Respondent plus N50,000,000.00 exemplary damages against the Appellants. The Appellants being aggrieved with the decision of the Trial Court filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1.  Whether the failure of the trial Court to consider and determine the issues raised by the appellants, including disregard of DW1’s evidence, denied the Appellants the right to fair hearing?

2.  Whether in the wake of Exhibit H and the blatant disconnect between the events that occurred prior to the respondent’s dismissal on 31st May 2019 and his subsequent withdrawal on 24th June 2020, the trial Court was right to hold that the Respondent’s right to fair hearing was violated?

3.  Whether the decision of the trial Court is in conformity with the provisions of the Armed Forces Act?

4.  Whether the trial Court was right to order that the Respondent be commissioned and promoted to the present rank of his course mates who have been commissioned as officers?

 

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RATIONES DECIDENDI

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FAIR HEARING – WHERE AN APPELLANT CLAIMS THAT HIS RIGHT TO FAIR HEARING HAS BEEN VIOLATED

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It is not enough for the Appellants to submit as they did by counsel to identify the pages of the judgment which summarized the written address of counsel, and stating that the evidence of DW1 was discountenance, and same would metamorphosed into establishing that the Appellants’ right to fair hearing was violated by the trial Court. As rightly stated by the Respondent’s counsel, the Appellant must show how the decision of the trial Court occasioned her miscarriage of justice. – Per M. S. Hassan, JCA

 

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ISSUES – LIBERTY COURTS ENJOY IN DETERMINING ISSUES FOR DETERMINATION

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There is no law that says a Court must resolve a case based on the issues formulated by parties in their final addresses. The Court is certainly at liberty to adopt the issues formulated at address stage or formulate her issues based on the evidence adduced before the Court. – Per M. S. Hassan, JCA

 

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FAIR TRIAL – THE DUTY OF THE COURTS TO PROTECT THE RIGHT TO FAIR HEARING/FAIR TRIAL

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It is very clear and settled that the provisions of the Fundamental Human Right enshrined in the

Constitution and various laws including the Armed Forces Act with respect to fair hearing and giving of a reasonable time to defend oneself when charged with a crime is sacrosanct. These provisions cannot be wished away. It is for the good of all humanity, therefore, for counsel to submit that since Respondent apologized and admitted his crime, the events are not connected to the withdrawal of the Respondent leaves so much to be desired, and I do not subscribe to that. The procedure of the law must be followed, especially by the military. The right to fair hearing/trial must be protected at all costs, you cannot slide that away as there are the very foundation of justice with the Courts must protect first and at all costs. – Per M. S. Hassan, JCA

 

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EVIDENCE – CONDUCT OF COURTS IN RELATION TO EVIDENCE

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I had said it and I would repeat it, this Court cannot decend into the blueprint of the records to begin to do investigative judgment for the Appellants. This is the complaint of the Appellants against the judgment of the trial Court. The Appellants have to be seen doing more to point this Court as to how the trial judge erred leading to their appeal. – Per M. S. Hassan, JCA

 

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COURTS – POWER OF COURTS TO MAKE ORDERS

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A Court of law has all the inherent powers under the Constitution to make orders that are rightly asked by litigants, and having been shown and established before the trial Court that the Respondent was unlawfully dismissed and withdrawn by the Appellants without fair trial, the orders of the trial Court are very proper. – Per M. S. Hassan, JCA

 

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DAMAGES – CONDUCT OF COURTS IN AWARDING DAMAGES

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I must say however that the exemplary damages awarded in the sum of N50,000,000.00 (Fifty Million Naira) to my mind is excessive. It is trite that damages should not be excessive or punitive and that in the award of damages the Court cannot afford to assume the role of a Father Christmas particularly in these times of economic recession, Father Christmas has ceased to be generous as he use to during Christmas festivities. – Per M. S. Hassan, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Armed Forces Act

2. Standing Orders for Cadets of the Officers’ Training School MTC NAF

 

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