A Review Of The Case Of Ex-Lance/Corporal Chukwukere Worlu v. Nigerian Army & 2 Others Suit No: NICN/06/2020

INTRODUCTION

The review of this summary trial of Ex-L/cpl Chukwukere Worlu has vindicated my belief that there is justice in military justice, whether administered by court-martial or summary trial. EX-L/CPL Chukwukere Worlu was, until the 7th day of October, 2015, a personnel of the 202nd Battalion on Operation Lafia Dole at Bama, Borno State. He was involved in writing an anonymous petition to the presidency with some other soldiers, in which they complained that they had overstayed in the Mission area. They were invited for an interview by the Intelligent Unit at 212 Armored Brigade, where the above-named ex-soldier was indicted. He was later charged, tried summarily, and dismissed for conduct to the prejudice of military discipline, contrary to Section 103 of the AFA, CAP A20, LFN, 2004. He later appealed against his trial to the National Industrial Court of Nigeria (NICN), alleging wrongful dismissal and unfair trial. The court dismissed his appeal for lacking in merit. This review intends to emphasize the merits of following the constitutionally required fair trial procedure even when conducting a summary trial.

RELIEFS SOUGHT:

In an action initiated vide a complaint with a statement of facts and other originating processes, the claimant prayed the court to grant him the following reliefs:

• An order of the court invalidating the wrongful dismissal and termination of his recruitment
• An order of the honorable court commanding the defendants to promote him to the next rank accordingly.
• An order of the honorable court commanding the defendant to pay him  all his outstanding salaries and entitlements commencing from 7th September,2019.
• An order of the honorable court commanding the Defendants to pay compensation to the Claimant in the sum of #100.000.000 (One Hundred Million Naira only) for wrongful termination of contract of employment, psychological trauma, emotional torture, depression and embarrassment of the Claimant.

ISSUE(S):

The following issues are formulated for consideration pursuant to the focus of this review:

• Whether the NICN has jurisdiction to review summary trial cases involving military personnel?
• Whether the finding of fair trial by the NICN is in conformity with the relevant AFA provisions and the Rules of Procedure Army, 1972?
• Whether the Ex-soldier was entitled to the reliefs he prayed for?

ISSUE ONE

Whether the NICN has jurisdiction to review summary trial cases involving military personnel?

The AFA has significantly upgraded the military justice system in terms of fair trial. It has done so by copying the fair-hearing provisions of the CFRN, 1999 (as amended) and conferring jurisdiction at Section 183 of AFA on appellate court to review court martial cases in Nigeria. In like manner, NICN is seised with jurisdiction over cases tried summarily by trial authorities in the Nigerian military. One hopes that this power to review military trials will not undermine the duty on persons aggrieved with military trials to first exhaust internal mechanism for redressing grievances as provided under Sections 147, 154 and 178 of AFA. For instance while accused personnel that are not satisfied with summary trial awards imposed on them are authorized to petition against such findings and awards to the appropriate superior authority for review under Section 147, Section 149 of AFA empowers such aggrieved persons to petition the confirming authority before confirmation of court martial verdict or even thereafter according to Section 154 of AFA.

Nevertheless , the NICN is siesed of jurisdiction to review the instant case and others tried summarily.

ISSUE TWO

Whether the finding of fair trial by the NICN is in conformity with the AFA provisions and the Rules of Procedure, Army 1972. The provisions of the extant military law on fair trial fully concur with the findings and decision of the NICN on this case in all material respects. The Ex-soldier was charged under Section 103(1) of AFA which provides as follows:

“A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

The court rightly opined that the employment of the ex-soldier was a statutory employment because the recruitment, termination and discipline of the employee are clearly spelt out in a statute, the AFA. The ex-soldier in the instant case was recruited under sections 28 and 29 of AFA, disciplined and dismissed under sections 116, and 124(5) AFA, respectively. For instance, section 28(1) of AFA on enlistment provides as follows:

“A person seeking to enlist in the Armed Forces shall be given a notice in the prescribed form setting out questions to be answered on attestation and stating the general conditions of the engagement to be entered into by him. And a recruiting officer shall not enlist a person in the Armed forces, unless he is satisfied by that person that he was given that notice, understands it and wishes to be enlisted.”

The soldier on attestation, was given a notice in the prescribed form where he positively answered questions setting out the general conditions of his employment as stated under Section 28(1) of AFA above, these include the terms and conditions of military work, the hazards involved and the restriction of his fundamental rights. Military service worldwide is characterized by regimentation and military discipline which includes “overstaying in a mission area” without complaining as implied in the English case of Grant v. Gould (1972) 2 Henry Blackstone, 69 where the court stated that “a soldier does agree and consent that he shall be subject to the military discipline, and he cannot appeal to civil courts to rescue him from his own compact”. The above English case is applicable in Nigeria under a plethora of authorities including Stanbic IBTC Bank v. Longterm Global Capital LTD & ORS (2021) LPELR-55610(CA) and other cases,all hinging on the doctrine of comparative jurisprudence.

To arrive at its decision, the court summarized the parties’ issues in a lone issue as follows:

“Whether the Claimant has established a case against the Defendants to be entitled to the reliefs sought in this suit”.

The court then summarized the cases of both parties before delving into the main issues of wrongful termination of employment and allegation of unfair trial . On the allegation of unfair trial, the court recalled as follows:

“The claimant admitted in his evidence under cross examination of having been interrogated by the Intelligent Unit along with some other persons, informed of the allegation against him and shown the charge. See paragraphs 10,11 and 12 of Claimant’s written statement on oath dated 5th July, 2022. From the evidence of DW1, Lt Col AD Illiya, the Claimant was among six soldiers sacked under his unit and by investigation and Claimant’s utterances. Exhibit D2 is the charge sheet and the Record of proceeding of Summary trial.”

The court then wondered the basis on which the Claimant could properly allege unfair trial seeing that Chief Ozagu Peter Esq who defended the Nigerian Army in the case cross-examined the Claimant thoroughly to elicit the necessary proof that the exact nature of the infraction(s), which an employee is expected to answer to, was disclosed to him and that he was given ample opportunity to defend himself.

The DWI who was the Claimant’s commanding officer also tagged him as a stubborn soldier “Who had been agitating in the camp on why the faceless publication was not yet out”. As the court rightly observed, “it is trite law that the evaluation of evidence adduced in a trial by a witness and the ascription of probative value to such evidence are matters within the exclusive competence of the trial judge who has the advantage of seeing the witnesses, of watching their demeanour and of hearing them give evidence. See Sule D. Asariyu v. The State (1987)4 NWLR(PT.67)709;”On his allegation of wrongful dismissal, the court observed that the Claimant did not disclose the terms of employment which the Defendant had purportedly breached.

The reasoning of the court above agrees in toto with the relevant Provisions of AFA and the Rules of Procedure, Army 1972. Section 116(1)(b) of AFA provides as follows:

“where the accused is below the rank of warrant officer class one or chief petty officer, the battalion commander or his equivalent may summarily deal with the charge by either dismissing the case or awarding any of the following punishments:

• Dismissed regiment to the rank of corporal, able rate or below.
• Imprisonment with hard labour up to twenty-eight working days in the unit guardroom…..etc.”

Section 124(5) explains that:

“references in this Act to dealing summarily with a charge are references to the taking by the appropriate superior authority or the commanding officer of the accused, as the case may require, of the following action, this is

• Dismissing the charge; or
• Determining whether the accused is guilty; or
• Where the accused is guilty, recording a finding of guilty and awarding punishment;.”

The review of this case has confirmed that there is justice in military justice and that summary trial proceedings can be conducted in conformity to the fair trial requirement of the CFRN 1999 (as amended). See the practical demonstration of this in a Summary Playlet in my Book entitled “Introduction to Military Law Practice and Procedure in Nigeria,” page 111. Of paramount importance to proving fair trial is adherence to procedure as demonstrated in the playlet and proper compilation of the records starting with completion of Form 19 as amply demonstrated in the Book.

ISSUE THREE

Whether the Ex-soldier was Entitled to the reliefs prayed for? The issue of whether the Ex-soldier was entitled to the reliefs he had prayed for at this junction no longer arises. This is because one cannot put something on nothing and expect it to stand. Since the Ex-soldier did not adduce any credible evidence to support his claims.

The words of the court rightly concluded this case when it held as follows:

“I find and hold that the Defendants have not breached above provisions of the law, i,e.(AFA CAP A20,LFN,2004) and have followed due process in the dismissal of the Claimant and the procedure followed is valid. Thus the Claimant has failed to prove his wrongful termination and failed consequently in his relief.”

CONCLUSION

This review has discussed a case where a soldier was tried summarily on a charge of conduct to the prejudice of service discipline, convicted and was dismissed. It is important to note that the procedure followed in the conduct of the summary trial ensured that the trial met all the fair-hearing requirements of the Constitution .

Neither wrongful termination nor denial of fair-hearing could be substantiated because the trial followed the AFA provisions and the exact offence constituting the conduct which prejudiced military discipline under Section 103 of AFA was clearly disclosed in the charge. In view of the above, there is no gainsaying that there is justice in military justice whether administered by court-martial or summary trial when prescribed procedures are duly followed.

This article was written by: Col BU Okorie(rtd) Esq

Source: @BarristerNG