Legal Status of Military Petitioner After Conviction Challenge

CASE TITLE: JOHN v. YUSUF & ORS (2023) LPELR-61115(CA)
JUDGMENT DATE: 19TH SEPTEMBER, 2023
PRACTICE AREA: CONSTITUTIONAL LAW (ENFORCEMENT OF FUNDAMENTAL RIGHTS)
LEAD JUDGMENT: ONYEKACHI AJA OTISI, J.C.A

SUMMARY OF JUDGMENT:

INTRODUCTION:
This appeal borders on the justiciability of an action for wrongful dismissal under the Fundamental Rights (Enforcement Procedure) Rule.

FACTS:
This appeal was lodged against the judgment of the Federal High Court, Lagos Division, delivered on February 7, 2019.

A summary of the facts leading to this appeal is as follows:

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 was 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 at 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. Being of the view that his imprisonment, as well as the alleged degrading treatment and indignity, violated 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 trial Court, for enforcement of his fundamental rights and damages, which was challenged by the Respondents.

The trial Court heard the application and dismissed it, holding that the facts, grounds for the application and reliefs sought did not fall within Fundamental Rights.

Dissatisfied with the decision, the Appellant lodged this appeal.

ISSUE(s) FOR DETERMINATION:
The Court distilled a sole issue for the determination of the appeal, thus: “Do the facts of this case fall within the purview of Fundamental Rights?”

DECISION/HELD:
On the whole, the appeal was dismissed.

RATIOS:
• APPEAL- FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether an Appellate Court can rely on competent issues formulated by a respondent to determine an appeal
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): How to determine the question of infringement of fundamental rights
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the enforcement of fundamental right must be the main claim in an application brought under the Fundamental Rights Enforcement Rules; effect of failure
• CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Duty of the court and the burden on the applicant in matters of enforcement of fundamental rights
• EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden to prove deprivation of right to liberty
• EVIDENCE- AFFIDAVIT EVIDENCE: How conflicting material facts in affidavit evidence are resolved
• MILITARY LAW- COURT MARTIAL: Time within which a petition against the finding or award of a Superior Authority should be initiated
• MILITARY LAW- ARMED FORCES: Whether a serving member of the armed forces is subject to laws relating to the Armed Forces until his discharge
• MILITARY LAW- ARMED FORCES: Whether a military person who has petitioned against his conviction pursuant to the Armed Forces Act remains subject to the military law
• PRACTICE AND PROCEDURE- FUNDAMENTAL RIGHT (ENFORCEMENT PROCEDURE) RULES: Whether the Fundamental Rights Enforcement Rules is applicable to an action which is mainly for wrongful dismissal

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