CORAM

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OBANDE FESTUS OGBUINYA JCA

ONYEKACHI AJA OTISI JCA

Frederick Oziakpono Oho JCA

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PARTIES

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MR ADEWUNMI ADENIYI JOHN

APPELLANTS 

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1. COMMODORE I.B. YUSUF (Commandant NNS Quorra, Lagos)

2. REAR ADMIRAL OFORDILI (The Fleet Of Command, NAVTRAC)

3. VICE ADMIRAL I.B. IBASS (The Chief of Naval Staff)

4. THE NIGERIAN NAVY

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, FUNDAMENTAL RIGHTS, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

While undergoing training at the Nigerian Navy Ship Quora (NNS Quora), the Appellant, attached to the Naval Training Command (NAVTRAC), was alleged to have committed the military offences of assault, insubordination and disobedience to standing order. He was arraigned before the 4th Respondent’s tribunal, tried and convicted on 29/9/2017 on the three offences, with a verdict of reprimand and dismissal.

​In accordance with the provisions of Section 147 of the Armed Forces Act, 2004, the Appellant petitioned against his conviction and sentence to the Chief of Naval Staff, seeking a reconsideration of his case. While awaiting the decision on consideration of his petition, the Appellant was released from military custody but remained in the NNS Quora Training School and continued to receive his monthly salaries and allowances.

The Appellant alleged that, after his conviction on 29/9/2017, he was imprisoned by the Respondent, for over 90 days and subjected to several degrading and inhuman treatments in violation of his constitutional right to personal liberty and human dignity, Sections 35(1) and 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended and Article 6 and 5 of the African Charter on Human and People's Right (Ratification and Enforcement) Act.

The Appellant commenced action at the lower Court, for enforcement of his fundamental rights and damages, which was challenged by the Respondents. The lower Court heard the application and dismissed it.

​Dissatisfied with this decision, the Appellant lodged the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Do the facts of this case fall within the purview of Fundamental Rights?

 

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RATIONES DECIDENDI

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GROUND OF APPEAL – MEANING AND IMPORTANCE OF GROUND OF APPEAL

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A ground of appeal is the specific legal basis or reason upon which a party challenges a decision or judgment made by a lower Court and for which the party seeks a review or reversal of that decision by the appellate Court. The ground of appeal consists of the error of law or fact, or a hybrid of the two, alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside; Metal Construction (West Africa) Ltd v. Migliore & Ors [1990] LPELR- 1869 (SC); Set Success Enterprises & Co Ltd v. Ibeju-Lekki Local Government Council & Anor (2021) LPELR-56608(SC).

Issues for determination of an appeal are distilled from the grounds of appeal, with the aim being to narrow down or streamline the complaint raised in the said grounds of appeal with precision, accuracy, brevity and clarity; Olowosago & Ors v. Adebanjo & Ors (1988) LPELR- 2601(SC); G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd(2005) LPELR-1293(SC); Set Success Enterprises & Co Ltd v. Ibeju-Lekki Local Government Council & Anor (supra). – Per O. A. Otisi, JCA

 

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ISSUES – THE PRINCIPLE GOVERNING THE FORMULATION OF ISSUES IN AN APPEAL – CONDUCT OF COURTS WHEN A GROUND OF APPEAL IS SPLIT INTO TWO ISSUES

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The established principle governing the formulation of issues in an appeal settles that, while a number of grounds of appeal could, where appropriate, be condensed into a single cognizable issue, one ground of appeal cannot birth two or more issues for determination; Labiyi v. Anretiola & Ors (1992) LPELR-1730(SC); Yusuf & Ors v. Akindipe & Ors (2000) LPELR-3532(SC); State v. Omoyele (2016) LPELR-40842(SC); Yisi (Nig) Ltd v. Trade Bank Plc (2013) LPELR- 20087(SC); Atuma v. APC & Ors (2023) LPELR-60352(SC). The grounds of appeal should, on no account, be less than the issues distilled for determination from the said grounds. Therefore, framing two issues from one ground of appeal violates this principle. A ground of appeal should not be split to raise two issues.

Where an appellant commits the blunder of splitting a ground of appeal into two issues, the issues will be rendered incompetent and liable to be struck out. This is because the Court bears no duty, as the Respondents appear to have suggested in their Brief, to make a choice for the appellant between the two issues framed from one ground of appeal; Society Bic S.A. & Ors v. Charzin Industries Ltd (2014) LPELR-22256(SC). – Per O. A. Otisi, JCA

 

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COURTS – CONDUCT OF COURT WHEN INCOMPETENT ISSUES RAISED BY AN APPELLANT ARE STRUCK OUT

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The striking out of the incompetent issues formulated by an appellant can only result in the striking out of the appeal where there are no competent issues for determination distilled by the respondent from the appellant’s grounds of appeal. However, the appeal can be saved where the respondent has formulated a competent issue from the ground of appeal; Society Bic S.A. & Ors v. Charzin Industries Ltd (supra). – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHTS – THREE CIRCUMSTANCES THAT ENTITLE A PARTY TO SEEK FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHTS

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Section 46(1) of the 1999 Constitution, as amended, provides that any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in relation to him may seek redress. Order 2 Rule 1 of the Fundamental Rights (Enforcement procedure) (FREP) Rules, 1979, ​ under which the Appellant’s application culminating in this appeal was brought, makes similar provisions to guide the procedure in such applications.

Section 46(1) sets out three circumstances that entitle a party to seek for the enforcement of his fundamental rights. These circumstances are: where the party alleges that his rights have been infringed; where he alleges that his fundamental rights are being infringed; and where he alleges that his fundamental rights are likely to be infringed. – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHTS – DUTY OF THE APPLICANT IN A FUNDAMENTAL RIGHT MATTER

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The question of an infringement of the fundamental rights of an individual is always a question of fact. The facts as disclosed by the affidavit evidence are examined, analyzed and evaluated to determine whether indeed the fundamental right of the applicant has been, is being or is likely to be breached as claimed, or otherwise dealt with in a manner that is contrary to the constitutional and other provisions of the Law; Okafor v. Lagos State Government & Anor (2016) LPELR-41066(CA); Mirchandi v. IGP & Ors (2021) LPELR-54016(CA). The applicant bears the onus of disclosing facts that would validate his claim. – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHT – ELEMENTS EXAMINED TO DETERMINE JUSTICIABILITY OF A FUNDAMENTAL RIGHT CAUSE OF ACTION

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Further, before action to enforce fundamental rights can be entertained by the Court, the alleged breach of fundamental rights must be the main plank of the action. The Respondents’ Counsel, Mr. Okohue, rightly submitted, three elements that are examined to determine the justiciability of a cause of action under the Fundamental Rights (Enforcement Procedure) Rules are: the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon.

All these elements must jointly disclose that the action is fundamentally seeking to enforce analleged breach of fundamental rights. Where the alleged breach of fundamental right is incidental or ancillary to the main complaint, the action cannot be competently pursued under the Fundamental Rights (Enforcement Procedure) Rules; Sea Trucks Nig. Ltd v. Anigboro (2001) LPELR-3025(SC), (2001) 1 MJSC 111 at 127, 130; Tukur v. Government of Taraba State (supra), (1997) LPELR-3273(SC); FRN v. Ifegwu (2003) LPELR-3173(SC); Emeka v. Okoroafor (2017) LPELR-41738(SC); Nwanze v. NRC (2022) LPELR-59631(SC). – Per O. A. Otisi, JCA

 

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LAWS – THE NATURE OF LAWS GOVERNING A PERSON IN MILITARY SERVICE

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There is no doubt that persons in military service are governed by a complex framework of laws, regulations, and codes of conduct. These regulations, which may differ in some detail in respective military branches, cover various aspects of military life, including training, duty assignments, and disciplinary procedures. A person in the military remains subject to these military laws and regulations and codes of conduct until his discharge from service. – Per O. A. Otisi, JCA

 

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PETITION – WHERE A MILITARY PERSON PETITIONS HIS CONVICTION PURSUANT TO THE ARMED FORCES ACT

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It is deducible that, a military person who has petitioned against his conviction, pursuant to the Armed Forces Act, remains subject to the military law, regulations and code of conduct pending the outcome of his petition. By extension, if his punishment of dismissal is set aside upon his petition, his military service and adherence to the relevant code of conduct would have remained uninterrupted or unbroken. He continues to serve as military personnel. This is the reason why he would continue to receive his wages and allowances, until his dismissal is confirmed.

​It can thus be extrapolated that, under the military rules, where a military person, pursuant to Section 147 of the Armed Forces Act, petitions against his conviction in a summary trial, he remains military personnel, staying within the confines of the barracks of his unit, receiving his wages and allowances, and, it cannot, in that circumstance, be inferred or assumed that he was imprisoned or kept in custody against his will. He remains a military man, subject to military rules, code of conduct and discipline, until the outcome of his petition confirms his punishment.– Per O. A. Otisi, JCA

 

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IMPRISONMENT – MEANING OF IMPRISONMENT – BURDEN OF PROOF WHEN A PERSON CLAIMS TO HAVE BEEN IMPRISONED

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A person is deemed to be imprisoned when they are physically restrained, confined or deprived of their liberty in a manner that restricts their freedom of movement. Imprisonment typically occurs when a person is confined to a specific location or facility against their will. See also Blacks’ Law Dictionary, Ninth Edition, at page 825. It is the duty of the person who alleges that he has been so restrained, confined or deprived of his liberty to prove his assertion. He who asserts or claims a relief must prove it by credible evidence; Obe v. MTN (2021) LPELR- 57730(SC); Dasuki v. FRN (2018) LPELR-43897(SC). See Sections 131(1) and 132 of the Evidence Act, 2011. – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHT – DUTY OF AN APPLICANT TO PROVE THAT RELIEFS CLAIMED COME UNDER FUNDAMENTAL RIGHTS

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Essentially, the law is settled that an applicant for the enforcement of fundamental rights under Chapter IV of the Constitution has the initial onus of showing that the reliefs he claims comes within the purview of fundamental rights as enshrined in Chapter IV of the Constitution; Lagos State Traffic Management Authority v. Omosivwe (2020) LPELR-52129(CA); Onwule v. Otamiri & Ors (2022) LPELR-58558(CA) The duty of the Court in such matters is to decipher from the affidavits and documentary evidence whether the Applicant’s rights were in fact breached; Ezeilo v. Ezeonu (2019) LPELR-48336(CA). – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHT – WHETHER AN ACTION FOR DISMISSAL FROM THE SERVICE OF THE NIGERIAN NAVY CAN BE BROUGHT UNDER FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURES

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An action founded on an alleged wrongful dismissal from the service of the Nigerian Navy cannot be brought under the Fundamental Rights (Enforcement) Procedure Rules. Being retained in the service of the armed forces is not, by any stretch of imagination, a fundamental right. See Jack v. University of Agriculture Makurdi (2004) LPELR-1587(SC); Egbuonu v. Bornu Radio Television Corporation (1997) LPELR-1040(SC); Isuama v. Gov of Ebonyi State & Ors (2005) LPELR-7505(CA); Agbaso v. Iwunze & Ors (2014) LPELR-24108(CA). – Per O. A. Otisi, JCA

 

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FUNDAMENTAL RIGHT – CONDUCT OF COURTS WHEN THEY CANNOT DISCERN THE ELEMENTS OF BREACH FUNDAMENTAL RIGHT IN AN ACTION BROUGHT FOR ITS ENFORCEMENT

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Once the Court cannot discern the elements of breach of the fundamental rights of an applicant, it has a duty to dismiss the action or make appropriate orders as the justice of the case demands; Ezeilo v. Ezeonu (supra). – Per O. A. Otisi, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Armed Forces Act, 2004

3. African Charter on Human and People's Right (Ratification and Enforcement) Act

 

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OTHER CITATIONS