Non-compliance with Condition Precedent – Effect of Failure to Plead Same in the Defence

In the Court of Appeal of Nigeria

In the Abuja Judicial Division

Holden at Abuja

On Friday, the 31st Day of December, 2021

Before Their Lordship

Stephen Jonah Adah

E.O. Williams-Dawodu

Danlami Z. Senchi

Justices, Court of Appeal

Appeal No. CA/A/299/2019


  1. Nigerian Army
  2. Nigerian Army Staff
  3. Chief of Army Staff
  4. Armed Forces Council
  5. Chief of Defence Staff
  6. Gen. Mansur Dan-Ali (Rtd.)
  7. Gen. Tukur Yusuf
  8. Gen. Mohammed Hong Garba                        Appellants


  1. Danladi Ribah Hassan (Rtd.)
  2. Attorney-General of the Federation Respondents

             (Lead judgement delivered by Honourable Stephen Jonah Adah, JCA)


The Respondent was a commissioned officer with the Nigerian Army. He joined the force in September 1994 and remained in service till 9th June, 2016 when he was compulsorily retired from the Nigerian Army on disciplinary grounds. Upon receiving the letter retirement from the Nigerian Army, the 1st Respondent wrote a letter dated 22nd June, 2016 addressed to the President, Commander-in-Chief of the Armed Forces of Nigeria, through the Chief of Defence Staff, seeking redress against his wrongful retirement from the Nigerian Army.

When the case remained unresolved, the 1st Respondent approached the National Industrial Court, Abuja, seeking inter alia, a Declaratory Order that his purported compulsory retirement from the services of the Nigerian Army constitutes an unfair, invalid and wrongful dismissal in contravention of the provisions of the Armed Forces of Nigeria Harmonised Terms and Conditions of Service for Officers, 2012. He sought an Order of court setting aside the purported letter of compulsory retirement, as well as an Order directing his re-instatement to his statutory protected employment, with all his rights and entitlements.

The Appellants, as Defendants at the lower court, denied the assertions and claim vide their joint Statement of Defence. The parties called witnesses and tendered exhibits in proof of their case. In a reserved judgement, the trial court found for the 1st Respondent, which decision informed the appeal by the Appellants to the Court of Appeal.

Issues for Determination

From the eleven Grounds of Appeal filed, counsel for the Appellants distilled two issues for determination of court. The 1st Respondent adopted the issues as distilled by the Appellants, thus:

  1.  Whether the 1st Respondent had complied with the condition precedent required of him before inviting the trial court to exercise its jurisdiction to hear and determine this case.
  2.  Whether the findings and judgement of the trial court in favour of the 1st Respondent was not a perversity.


Arguing the issues, counsel for the Appellants submitted that one of the determinants of the jurisdiction of the trial court to determine a case is that there must be compliance with due process of law in commencement of the suit. He relied on MADUKOLU v NKEMDILIM (1962) 1 NLR 587. Counsel contended that by the provisions of the Armed Forces Act, before the 1st Respondent can ignite the jurisdiction of the trial court in challenging any decision against him by the relevant authorities, he is obliged to exhaust the internal administrative remedy made available to him, in compliance with the mandatory requirement of Section 178(1), (2) and (3) of the Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004. He posited that non-compliance with, or departure from the procedure is fatal to the 1st Respondent’s claim for enforcement of the remedy as such non-compliance renders the action a nullity – NIGERIAN ARMY v AMINU KANO (2010) 5 NWLR (Pt. 1188) 460. Regarding the second issue, counsel submitted that all the findings of the trial court was perverse in that they were neither borne out of the pleadings of the 1st Respondent nor supported by evidence before the court.

Responding to the submissions above, counsel argued on behalf of the 1st Respondent that Section 178(1) of the Armed Forces Act employed the word “May”, which going by the general principle of interpretation of statute, connotes permissive action, though mandatory or compulsory action in exceptional circumstances – OLOMODA v MUSTAPHA (2019) 6 NWLR (Pt. 1667) 38 at 52. He submitted that the administrative requirement before commencement of the suit was complied with.  Counsel referred the court to the evidence of 1st Respondent to the effect that his efforts at ensuring that his requests to the appropriate authority by way of an appeal to the President of the Federal Republic of Nigeria was attended to, was stultified by the Appellants. And that this evidence remained unchallenged by the Appellants at the trial court. He referred to the case of UZODINMA v IHEDIOHA (2020) 5 NWLR (Pt. 1718) 529, on the position of law regarding unchallenged evidence. With respect to the submission on perversity of the decision of the trial court, counsel submitted that there is no magic in the word “perversity”; such allegation must be established, and the Appellants failed to supply the necessary facts to show the judgement was perverse.

In the Reply Brief, counsel for the Appellants responded to the submissions in the 1st Respondent’s Brief.  He argued that failure to exhaust the procedure under the Armed Forces Act before filing the suit, robs the court of jurisdiction to determine the case, given that where the law has provided a special procedure for seeking a remedy before resorting to court, failure to adhere to that procedure goes to the jurisdiction of the court to entertain the action – ABUBAKAR v INEC (2012) 12 NWLR (Pt. 1737) 37. Further, contrary to the submission of the 1st Respondent, he actually testified that he did not apply for re-engagement after 18 years and 22 years as statutorily required of him under Section 30(3) of the Armed Forces Act. Counsel submitted that the latitude granted the trial court under Sections 7(6) and 12(2) of the National Industrial Court Act and Order 5 rule 6(2) of the National Industrial Court Rules, cannot avail the court to find for a party who failed to establish his case before the court.

Court’s Judgement and Rationale

Deciding the issue of failure of the 1st Respondent to fulfil the condition precedent and compliance with procedure under Section 178 of the Armed Forces Act, before filing the action, the appellate court held that the issue is a question of law which is required to be pleaded by the Defendant for the court to countenance same. Referring to the decision of the apex court in SULGRAVE HOLDINGS INC. LTD v FGN (2012) 17 NWLR (Pt. 1329) 17, the Court of Appeal held that there is nowhere in the pleading of the Appellants at the court below where this (failure to exhaust administrative remedy before approaching the court) was pleaded. So, the lower court could not have taken up the matter from a counsel’s address and foist it on its proceedings since it did not form part of the case of parties. The trial court was not competent to look at the issue and the Court of Appeal lacks the jurisdiction to entertain an issue emanating therefrom. The Appellants cannot raise the issue on appeal without the leave of court.

 More so, the 1st Respondent has shown that he followed laid down procedure by writing a letter of complaint/protest to the President and Commander-in-Chief of the Armed Forces of Nigeria, through the Chief of Defence Staff. By the letter, the 1st Respondent made his appeal, stating that his compulsory retirement was said to be pursuant to Paragraph 0.9.02C (04) of the Harmonized Terms and Conditions of Service for Nigerian Army Officers, 2012 (revised) and that the reason cited in the letter was – “on disciplinary grounds, i.e., serious offences”; but he did not commit any offence as he had neither been charged nor court-martialled for any offence. He, therefore, prayed the President to reconsider the compulsory retirement. Since the retirement was carried out under the Armed Forces Harmonized Terms and Conditions of Service for Officers 2012, the 1st Respondent was right to have acted further to that instrument to take the administrative step of reversing the retirement before approaching the court. Thus, the Appellants failed to establish their claim as the 1st Respondent took the necessary steps of the pre-condition before going to court.

Regarding the issue of the decision at the trial court being perverse, the Court of Appeal held that where findings of the trial court are evidently borne out of credible evidence, the decision cannot be tampered with by an appellate court, unless same is shown to be perverse. The Appellant herein failed to establish that the decision of the trial court was indeed perverse.

Appeal dismissed.


A.A. Machika Esq. with Onoja Esq. for the Appellants.

Samuel O. Zibiri, SAN with M. Isokpechi Esq. for the 1st Respondent.

Samuel Akpan Gabriel, Esq. (SSC) with O.D. Okoronkwo Esq. (SC) for the 2nd Respondent.

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