Public officers’ protection law can’t truncate access to court – SC

The relevant facts of the matter leading to this appeal are not in serious contention. The respondent was convicted by the G.C.M presided over by Col. O. 0. Okoro (N/7710) on 20/12/07 alongside one Warrant Officer Peter Weibey for conspiracy. The verdict of the G.C.M was confirmed on 9/8/2008 and same was published on 13/8/2008. […]

The relevant facts of the matter leading to this appeal are not in serious contention. The respondent was convicted by the G.C.M presided over by Col. O. 0. Okoro (N/7710) on 20/12/07 alongside one Warrant Officer Peter Weibey for conspiracy. The verdict of the G.C.M was confirmed on 9/8/2008 and same was published on 13/8/2008. The respondent instructed his solicitors to write letter of appeal to the appellant for a review of his case. There was no response to same.
The respondent then approached the lower court by way of motion on notice pursuant to Order 7, Rule 10 (1) and (2) of the Court of Appeal Rules 2007 wherein he prayed for extension of time within which to apply for leave to appeal against the decision of the G.C.M, leave to appeal and extension of time within which to appeal; often referred to as ‘the trinity prayers’.
The appellant raised preliminary objection to the application on two grounds that the respondent had not complied with the condition precedent before approaching the lower court and that the respondent’s action was statute barred by virtue of the provision of section 2 (a) of the Public Officers Protection Act.
 
The court below considered the materials placed before it and the submission of counsel on the laws seriously canvassed and dismissed the appellant’s preliminary objection. The court below thereafter granted the requisite leave to the respondent to appeal against the decision of the G.C.M which found the respondent guilty of conspiracy. The appellant felt dissatisfied with the said Ruling of the court below and has appealed to this court. The Notice of Appeal filed on 23/2/2010 contains two grounds of appeal.
The lone issue couched on page 3 of the appellant’s brief of argument for determination of the appeal reads as follows:-
“Whether the Court of Appeal correctly evaluated (sic) the law when it ruled that the appeal was properly before their lordships, and consequently dismissed the preliminary objection.”
On behalf of the respondent, the two issues formulated for determination, as contained on page 4 of his brief of argument read as follows:-
“ISSUE 1
Whether the Court of Appeal judicially and judiciously exercised its discretion in favour of the respondent by granting the reliefs sought and dismissing the appellant’s preliminary objection (GROUND 1)
ISSUE 11
Whether the matter before the Court of Appeal can be negatively affected by the provisions of section 2 (a) of the Public Officers Protection Act (GROUND 2)”
Arguing the sole issue formulated on behalf of the appellant, learned counsel submitted that the respondent failed to exhaust mandatory condition precedent before initiating his application for leave to appeal against the decision of the G.C.M. He cited the case of Salihu v. Minister of Defence (2009) 1 NWLR (Pt. 1123) 543. Learned counsel maintained that the condition precedent which was not complied with was pointed out and arguments canvassed on same were ignored by the court below.
Learned counsel opined that the respondent, being a military man and subject to service law, ought to have complied with the requirement of the Armed Forces Act, Cap A20 LFN as mandated by the provisions in sections 179 (4) and 184 (5) of same.
Learned counsel contended that the operative word in section 179 (4) of the Act is “shall” which mandates that an aggrieved soldier who desires to exercise his right by way of complaint must first exhaust the administrative remedies before embarking on any other action. He felt that the court below gave the law a narrow interpretation without any justification.
On behalf of the respondent, learned counsel pointed it out that it was clearly shown by the un-contradicted averments before the lower court and the exhibits attached to the respondent’s better and further affidavit that he applied passionately to the Chief of Army Staff for a review of his conviction. He maintained that as nothing was done, the respondent was compelled to approach the lower court. He observed that the letter of appeal was written, pursuant to the provision of section 149 of the Armed Forces Act.
Let me state it in clear terms that by the provision of section 240 of the 1999 Constitution of the Federal Republic of Nigeria, the court below is given exclusive appellate jurisdiction over decisions of the G.C.M. Such jurisdiction is not subject to the whims of any other quasi-judicial body or outfit. The appellant should appreciate this vital point right from the onset.
The appellant’s counsel strenuously maintained in the brief of argument that the respondent failed to comply with condition precedent before initiating his application for leave to appeal. He relied on sections 179 (4) and 184 (5) of the Armed Forces Act, inter alia.
The appellant did not pin-point clearly the condition precedent which was not complied with by the respondent. The appellant which asserted that condition precedent was not complied with, has the burden to prove same.
It is basic that any party which asserts must prove same.
The appellant tried to raise dust when it maintained that the respondent failed to exhaust the available remedies provided by the law before recourse to the court.
It is extant in the record of appeal as can be seen at pages 48-60 of same that the respondent deposed to un-contradicted averments and attached exhibits ‘A’ and ‘B’ to his better and further affidavit wherein he applied to the Chief of Army Staff in tune with the law for a review of his conviction by the G.C.M. As nothing was done by the Chief of Army Staff, he was compelled to approach the lower court. The salient averments remain un-contradicted. It is basic that unchallenged evidence stands. The court should accept same and act on it. The court below was on a firm ground in the stand taken by it.
Since no action was taken on the complaint of the respondent by the appellant, he was perfectly entitled to approach the lower court for leave to appeal. It does not lie in the sphere of the appellant to turn around and say that the respondent did not exhaust available remedies before approaching the court. Inaction on the part of the appellant to take appropriate step to consider the respondent’s complaint should not foreclose his right to approach the lower court to ventilate his grievances before the court which is imbued with requisite jurisdiction as dictated by section 240 of the Constitution of the Federal Republic of 1999 (the grund-norm).
Let me now move to the real matter in contention between the parties. The respondent maintained that there are good reasons for his failure to appeal within time and that there are substantial points of law to be canvassed at the hearing before the lower court.
It must be stated here that Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 provides for two conditions which must be satisfied conjunctively.

To be continued