IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/YL/07/2016
DATE: OCT. 03, 2018
BETWEEN:
ACM MOHAMMED AUWAL – CLAIMANT
AND
1. NIGERIAN AIR FORCE
2. CHIEF OF AIR STAFF ]- DEFENDANTS
REPRESENTATION:
F.A Ogbe,Esq ( Asst.Chief Legal Officer,Legal Aid Council of Nigeria)
– for the Claimant;
Sabo Samaila,Esq.,(Snr. State Counsel, Ministry of Defence)
-for the Defendants.
JUDGMENT
The Claimant instituted this action at the then Yola Registry of this Court (now Yola Judicial Division) via a Complaint dated 23rd June 2016 and filed on 12th July 2016, together with the requisite frontloaded court processes, challenging his purported withdrawal from the list of Airmen who were discharged and entitled to medical disability pension upon the recommendation of the 1st Defendant’s Medical Board after examining him due to the adverse effect of complicated abdomen surgery performed on him while in active service, but which recommendation was later amended by the 1st Defendant and a new signal was released indicating that he was involuntarily discharged on medical grounds for chronic alcoholism, without his undergoing any further medical examination by the Medical Board or there being any evidence of his indulging in alcoholism.
The Claimant sought for the following Reliefs:
“A. A DECLARATION that the Claimant’s Medical Discharge with Disability Pension as earlier conveyed to him by the Defendants through the NAF MESSAGE FORM endorsed by SQN.LDR E.S ONOBRAKPEYA is valid, lawful and subsisting
B. A DECLARATION that the Defendants had no right to cancel, amend. alter or withdraw the name of the Claimant from the list of the Airmen who were discharge[d] with disability pension having been recommended by the 1st Defendant and conveyed by the 2nd Defendant to all the Units and Commands of the 1st Defendant.
C. A DECLARATION that the message sent to various Units of the 1st Defendant title[d] AMENDMENT TO MEDICAL DISCHARGE –AIRMEN dated May 15 signed by AVM C.N CHUKWU that the Claimant’s discharge be changed to involuntary discharge on Medical ground based on baseless allegation of Chronic Alcoholism hence not entitle[d] to disability pension outlined in Para 14.22-14.22 of HTACOS (Airmen) is unlawful, illegal , contrary to the provisions of HTACOS 2012 (Revised) at the same time contrary to natural justice equity and good conscience.
D. A DECLARATION that the Claimant by the provisions of Harmonized Terms & Condition of Service for Soldiers/Ratings/Airmen 2012 (Revised) at page 58 under OTHER [DISABLEMENTS] he is entitled to be paid 100% by assessment of percentage and by the Description of his injury which is very severe in nature.
E. A DECLARATION that the injuries sustained by the Claimant while in the service of the 1st Defendant i.e Exploratory Laparatomy and Hemicolectomy are very severe in nature hence falls under OTHER DISABLEMENTS as contained at page 58 of HTACOS 2012 (Revised), consequently the claimant is entitled to be paid his benefits and entitlement under disability pension outlined in Para.14.22 of HTACOS.
F. AN ORDER SETTING ASIDE NAF MESSAGE FORM: AMDT TO MED DISCHARGE- AIRMEN Date Time Group Month A MAY,15 released by AIR CDRE SA.BABALOLA, AMENDMENT TO MEDICAL DISCHARGE-AIRMEN dated May 15 released and signed by AVM C.N CHUKWU and AMENDMENT TO MEDICAL DISCHARGE- AIRMAN NAF11/25688 ACM MOHAMMED A dated 30th June ,[20]15 signed by AIR CDRE S.A BABALOLA on behalf of the 2nd Defendant for being unlawful, illegal, contrary to the provisions of HTACOS for Soldiers/Rating/Airmen 2012 (Revised) and contrary to natural justice, equity and good conscience.
G. A DECLARATION that since the Claimant is yet to be paid his benefits and entitlements by the Defendants regarding his discharge on medical ground with disability pension, consequently, is entitled to be paid all arrears of his monthly salary of N65,000.00 ( sixty five thousand only) from September 2014 till judgment is entered in this case.
H. AN ORDER OF MANDATORY INJUNCTION directing the Defendants to pay the Claimant all arrear of his monthly salary of N65, 000 (sixty five thousand naira only) forthwith from September 2014 till judgment is entered.
I. A MANDATORY INJUNCTION compelling and directing the Defendants to forward the name of the Claimant to MILITARY PENSIONS BOARD as provided under para 14.22 of HTACOS 2012 (Revised) forthwith for payment of 100% assessment percentage in connection with the description of his injury under very severe disablements as his disability pension benefits forthwith.
J. A MANDATORY INJUNCTION compelling and directing the Defendants to order its Department (PMG) to process all the Claimant’s Documents to Military Pensions Board for payment of his benefits as contained in NAF MESSAGE FORM dated A JUN 14 released and endorsed by SQN LDR E.S ONOBRAKPEYA.
K. A MANDATORY INJUNCTION directing the Defendants to ensure the payment of the Claimant’s salary arrears and all his benefits and entitlements in respect to his discharge on Medical ground with disability pension with 100% assessment as outlined in para.14.22 of HTACOS 2012 (Revised) under OTHER DISABLEMENTS is paid within 30 days after judgment.
L. AN ORDER directing the Claimant to pay the sum of N5,000,000( five million naira only) as damages for the injury caused him having discharge[d] him from the service of the 1st Defendant on medical ground with disability pension but consciously and unlawfully reversed the discharge to involuntary discharge on baseless allegation of Chronic Alcoholism at same time deliberately refused, failed and neglected to pay him his benefits for over 2 (two ) years.
M. The cost of this action.”
The Defendants had delayed response, but later entered appearance vide a Memorandum of Appearance dated and filed on 2nd February 2017, along with the Defendants’ Statement of Defence and Witness Statement on Oath of one Fgt Sgt. Joseph Gakkuk, a Legal Clerk in the Office of the 1st Defendant’s Director of Legal Services, dated and sworn to on the 2nd February 2017, respectively. The late processes were however regularized by the court. The Defendants wholly denied the Claimant’s claims and insisted that the Claimant’s medical condition revealed chronic alcoholism which was self inflicted, and that there was no provision for disability pension in cases of ‘intestine adhesions’ which arose on account of self inflicted injury resulting from chronic alcoholism by the Claimant.
The Claimant further reacted with a Claimant’s Reply to the Defendants’ Statement of Defence dated 10th July 2017 and filed on 28th August 2017, wherein he joined issues with the Defendants on the allegation of chronic alcoholism being responsible for his ailment resulting in his discharge from service on medical ground. And insisted that he is entitled to disability pension, based on the 1st Defendant’s Medical Board’s confirmation that he had severe injuries sustained leading to surgery operations on him, of which the 1st Defendant earlier relied on in discharging him on medical disability with pension, and circulated same to all the Units of the Air force Command through the 2nd Defendant’s Office.
After several adjournments and failed attempts to resolve amicably out of court in Jos Division, the matter was transferred back to the Yola Division, when the Division commenced sitting in October 2017. Trial commenced on 5th December 2017. The Claimant testified for himself as Claimant’s Witness (CW1); adopted his Witness Statement on Oath and tendered 11 sets of documents listed in the Claimant’s List of Documents to be Relied on at Trial dated 23rd June 2016, all admitted in evidence and marked as Exhibits ‘CM 1-7, CM8A-C and CM9’. The description of the Exhibits are as follows: Referral Letter dated 4/01/13 by Dr. Elachi Adah for Acting CO Medical, Medical Centre 75 Strike Force Group NAF Yola ( Exh. CM1); TO WHOM IT MAY CONCERN written by the Federal Medical Centre Yola through Dr.Duila H.M HOD Surgery dated 18/6/2013 ( Exh.CM2); TO WHOM IT MAY CONCERN written by the Federal Medical Centre Yola through Dr.Abdullaziz Rabiu Baka dated 03/06/13 (Exh. CM3); NAF MESSAGE FORM with Serial No. AIRSEC/202 A JUN, 14 signed by SQN/LDR E.S ONOBRAKPEYA (Exh. CM4); NAF MESSAGE FORM with Serial No.AIR SEC 268 A MAY 15 signed by AIR CDRE S.A BABALOLA (Exh. CM5); AMENDMENT TO MEDICAL DISCHARGE –AIRMEN dated May ,15 signed by AVM C.N CHUKWU (Exh.CM6); AMENDMENT TO MEDICAL DISCHARGE- AIRMAN BAF11/25688 ACM MOHAMMED A dated 30th June 2015 (Exh. CM7);
Letter of passionate Appeal of Claimant’s Solicitors, Bawa, Bawa & Partners to the 2nd Defendant dated 24th June 2015 (Exh. CM8A); Letter of further passionate Appeal of Claimant’s Solicitors to the 2nd Defendant dated 30th November 2015 (Exh. CM8B); Reply of the 2nd Defendant to Claimant’s Solicitors letter of further passionate Appeal dated 22/12/15 (Exh.CM8C); Armed Forces of Nigeria Harmonized Terms & Conditions of Service for Soldiers/Ratings/Airmen 2012( Revised) ( Exh. CM9).
CW1 was cross-examined by the Defendant’s counsel. At the resumed trial proceedings on 15th May 2018, the Claimant’s 2nd Witness (who was Subpoenaed), the Chief Medical Director of Federal Medical Centre (FMC) Yola, Dr. Abudulaziz Rabiu Baka, testified as CW2. He introduced himself as a Medical Doctor with qualification of Bachelor of Medicine, Bachelor of Surgery Degree-MB,BS),who qualified in 1995 and has been working mainly as a surgeon since 1999.
CW2 testified on the medical conditions of the Claimant and tendered the Claimant’s Personal Confidential Medical File marked NHIS 040113; File No.005910 and Hospital No. 090824 kept at the Federal Medical Centre Yola upon his initial admission on 16/3/12. The said Medical File with its contents and endorsements was admitted in evidence and marked as ‘Exh. CM10’. He was thereafter cross-examined by the Defendants’ counsel, and the Claimant’s case was closed.
At the resumed proceedings of 13th June 2018, the Defendants opened their defence. One Flgt. Sgt. Joseph Nengak Gakkuk , a legal Clerk in the Office of the Director of Legal Services, Air Headquarters, Abuja, testified for the Defendants as Defendants’ Witness (DW). He adopted his 4-paragraph Witness Statement on Oath deposed to on 2nd February 2017, as his evidence in chief and did not tender any document. He was cross-examined and the Defendant’s case was closed.
Thereafter, Final Written Addresses by both counsel were ordered.
COUNSEL’S SUBMISSIONS
Submissions by Defendants’ Counsel
In his Final Written Address dated 21st June 2018 and filed on 25th June 2018, learned counsel for the Defendants, Sabo Samaila Esq,( Snr. State Counsel, Ministry of Defence), formulated a sole issue for determination, viz: Whether this Honourable Court will exercise its jurisdiction to hear or adjudicate on the matter that is statute barred?
Counsel submitted that the suit is caught by the provisions of S.2 (A) Public Officers Protection Act (POPA) which prescribed 3 month time limit to institute action against acts of public officer. Counsel contended that the suit being statute- barred renders the suit incompetent and denies the court of jurisdiction to entertain same. In support of his arguments, Counsel hauled in a myriad of cases on the effect of statute-barred matter on jurisdiction of court, such as: Francis Ofili v. Civil Service Commission (2008) (pt.4340); Sulgrave Holdings Inc v. FGN & 3 Ors [2012]17 NWLR (Pt.1329) 319; Elugbe v. Omokhafe [2004]18 NWLR (Pt.905]319; Okpalauzuegbu v. Ezemenari [2011]14 NWLR (Pt.1268), and William O. Olagunju & anor v. Power Holding Co. Nig Plc (2011) LPELR- 2556(SC), wherein the Supreme Court held that:
“It should be noted that when a defendant contend that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court concerned on point of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.”
In conclusion, learned Defendants’ counsel urged the court to uphold his submissions that the suit has become statute-barred, and should be dismissed with substantial cost.
Submissions by Claimant’s Counsel
On his part, learned Claimant’s counsel, F.A Ogbe, Esq, raised the following three issues for determination in his Final Written Address dated 4th July 2018 and filed on 5th July 2018:
1. Whether the Claimant has proved his case to warrant the judgment of this court?
2. Whether the Defendants can unilaterally amend the Claimant’s medical report without conducting examination on the Claimant?
3. Whether the Claimant’s action is statute-barred?
On issue (1)- Whether the Claimant has proved his case to warrant the judgment of this court: Counsel submitted that the Claimant has proved his case on the preponderance of evidence, and led expert evidence through CW2, to establish that the illness he suffered could not have been caused as a result of alcoholism, the evidence of which remained unchallenged even by the testimony of DW who was not a medical doctor and also not a member of the medical team that examined the Claimant, but his office (legal directorate) merely reviewed the report related by the Medical Board, thus, his evidence amounts to hearsay evidence under S.38 Evidence Act.
Counsel argued that the Defendants have failed to lead any evidence to prove their assertion that the Claimant’s medical condition was upon investigation revealed to be self-inflicted as a result of chronic alcoholism, which was the basis of the amendment signal which the Defendants relied on to deny the Claimant his entitlements. He contended that since pleadings do not constitute evidence, the Defendants did not discharge the evidential burden to prove what they asserted. He cited and relied on Adewunmi v. Nigeria Eagle Flour Mills [2004]14 NWLR (Pt.1428)443 @458, para.D, to the effect that: “He who asserts the affirmative has the duty to prove same. Generally there is no duty on a party to prove the other side” ; Alao v. Akano [2005]11 NWLR (Pt.935) 160 @180, para.D-E , wherein the Supreme Court held that : “ where issues are joined on any averment in the pleadings but no evidence is led, to support such averment in the pleading is either to be struck out or dismissed”.
It is the Counsel’s further contention that the evidence of CW2 (the Chief Medical Director of Federal Medical Centre, Yola), confirms that the illness suffered by the Claimant could not have been caused as a result of alcoholism. He submitted that this piece of evidence was unchallenged and un-contradicted, citing Kyili v. Yilbul [2015] 7 NWLR (Pt.1457)26 @57-58, para.H-A, 7 Para. H-C.
On issue (2)-Whether the Defendants can unilaterally amend the Claimant’s medical report without conducting examination on the Claimant: Counsel submitted that it is medically impossible for there to be a second conclusion on the medical fitness/condition of the Claimant without first having his physical presence and another medical examination conducted on him.
On issue (3)-Whether the Claimant’s action is statute-barred: Counsel submitted that the matter is not caught by limitation law, as the act complained of is a continuing injury, which falls under the exceptions to the general rule of limitation law. And as such where the action was filed outside the period contemplated by the law, the Claimant seeking his unpaid salaries and benefits should not be disqualified from making his justifiable claims. He cited and relied on: Mr. Ishmael Nna & Anor. v. Rivers State Governor & 3 Ors. (Unreported) Suit No. NIC/PHC/177/2013 delivered 24th May 2018); Captain Yahaya Zamdaiwabai v. Bourbon Interoic Nig. Ltd (Unreported Suit No. OW/11/2017, delivered on 7th March 2013); Captain Tony Oghide & 12 Ors. v. Jason Air Limited & Anor (Unreported Suit No. NIC/LA/2009 delivered on 13/1/2011. Counsel maintained that the cause of action is continuing and thus not caught up by limitation law, citing and relying on Aremo v. Adekanye [2004] 13 NWLR (Pt. 891) 572 @593, para.H and Abiodun v. AG Federation [2007] 15 NWLR (Pt.1057)395 @ 412-3, para.G-A, to the effect that “where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action”.
Counsel further contended that the defence of limitation of action should be specifically pleaded, and having not pleaded same, the Defendant cannot at the stage of Address raise same. He cited and relied on Nigerian Institute of International Affairs v. Mrs. T.O Ayantala [2007]2NWLR (Pt.1018) 252.
Counsel finally urged the court to uphold his submissions for the Claimant and discountenance the Defendants’ baseless defence, as the Claimant has proved his case by preponderance of evidence, to warrant the judgment to be entered in his favour.
Both counsel adopted their respective Final Written Addresses at the proceedings of 6th July 2018.
COURT’S DECISION
I have closely followed the proceedings and read the processes and submissions, watched the demeanor of the parties’ witnesses and evaluated the evidence adduced, particularly that of the subpoenaed expert witness, the Chief Medical Director of the Federal Medical Centre (CW2).
From the Final Written Addresses of both counsel, the Defendants’ counsel raised a sole issue bordering on challenge of the jurisdiction of the court while the Claimant’s counsel raised three issues inclusive of the sole issue raised by the Defendants’ counsel. Upon review, I have formed the view that while adopting the Defendants’ sole issue bordering on jurisdiction, the Claimant’s two other issues would be subsumed to another issue- whether the Claimant has proved his case to be entitled to the reliefs sought? Accordingly, I have narrowed the issues set out for determination into two–(1) whether this Honourable Court will exercise its jurisdiction to hear or adjudicate on the matter that is statute barred? (2) Whether the Claimant has proved his case to be entitled to the reliefs sought?
Issue (1) is an interesting development, as it forms the crux of the Defendants’ defence. Learned Defendants’ Counsel had submitted that the suit is caught by the provisions of S.2 (A) Public Officers Protection Act (POPA) which prescribed 3 month time limit to institute action against acts of public officer, and contended that the suit having been filed outside the 3 month limit has become statute- barred, and such renders the suit incompetent and denies the court of jurisdiction to entertain same.
Being a jurisdictional issue, it requires a quick attention and disposal. In West African Cotton Co Ltd v. Oscar Amos (Unreported Suit No. NICN/YL/10/2015, Judgment of which was delivered on June 13 2018) I had held that: “There is no doubt that the issue bordering on jurisdiction of court is a radical one and always occupies a pride of place in the proceedings towards addressing of issues raised for determination for effectual resolution of the matter in dispute between the parties before the court. For if it comes to the fore that the court lacks jurisdiction to hear and determine a subject matter, that is the end of the judicial exercise of power in entertaining the suit and the rest of the issues awaiting determination abate forthwith, having lacked foundation to rest upon and anchor judicial efforts for valid resolution of the matter in dispute”.
On that note, I now proceed to resolve the issue of application of the S.2 POPA on this suit. A threshold step towards resolution of this jurisdictional issue, is to resort to the pleadings/ processes before the court, particularly the Claimant’s Statement of Facts, and the last correspondence in the chain of material facts in the pleadings constituting the cause of action which the Defendants’ counsel relied on to raise the issue of statute of limitation (1st Defendant’s Reply letter dated 22nd December 2015).
It is not in dispute that this issue of application of the statute of limitation was not pleaded throughout the length and breadth of the Defendants’ processes (Statement of Defence and Witness Statement on Oath of DW). Counsel rather in his Final Address quoted many authorities on the subject of limitation law and its effect on the jurisdiction of court, without linking the authorities with the factual context of the case at hand, to sore-foot the authorities he cited and relied on, at least to gauge their applicability to the case at hand.
I had frowned at similar approach by counsel in Maundis Bika Nakai v. FCMB (Unreported Suit No.NICN/YL/02/2016, Ruling of which was delivered on November 14 2017), wherein I took the view that: “Unlike in the theoretical classroom where law can be regurgitated without factual application, in courtroom litigation, facts drive law to where it can be applied, and where facts do not take the law it cannot go there to apply”. I had struggled and combed the processes to find a factual link to this potent legal issue in the processes. The earliest and only link to this issue was at the trial, when the CW1 was asked by the Defendants’ counsel under cross-examination, thus:
“Q: In your paras.12& 15 Witness Statement on Oath (WSO) you said you appeared and examined by the Medical Board. In your para.20, in May 2015, an Amendment discharge signal was issued by the 1st Defendant. You received the last correspondence on 22nd Dec 2015, and you commenced this suit on 23rd June 2016. How long?
A: I don’t know”
Claimant’s learned counsel harped on this lapse to contend that the defence of statute of limitation is a special defence which ought to be pleaded before it can be raised by the Defendants, and having not pleaded same, the Defendants cannot at the stage of Address raise same. He cited and relied on Nigerian Institute of International Affairs v. Mrs. T.O Ayantala [2007]2NWLR (Pt.1018) 252 @263 para. D-G. Counsel had contended that non- pleading of the statute of limitation is a breach of rules of the court which ought to be complied with or visited with sanction for breach. While adumbrating on the issue at the Adoption proceedings, counsel provided additional authorities of S.18 (1) of the Interpretation Act and Hagaig v. Hagaig (2013) ALL FWLR (Pt.679) 1042 @ 1054 to anchor his submission on the effect of non-compliance with rules of court, and that it amounts to a waiver of the issue of application of statute of limitation.
I have checked relevant authorities on the issue of whether a statute of limitation can be raised elsewhere other than in the pleadings of the Defendant or by Preliminary Objection. From my research, evolving authorities seem to have overtaken the position relied on by the learned Claimant’s counsel in Nigerian Institute of International Affairs v. Mrs. T.O Ayantala [2007]2NWLR (Pt.1018) 252 @263 para. D-G, wherein it was held that: “The Public Officers (Protection) Act is a limitation statute. It is a special defence like fraud, estoppel, res judicata and as such those defences, it must be specially pleaded by a defence before the defence can rely on it in any proceedings….where such a defence is not pleaded by the defence in his statement of defence in the court of first instance, the defence can neither raise it nor rely on it on appeal”. Just few months later, in F.R.I.N. v. Gold (2007) 11 NWLR (Pt. 1044) 1, His Lordship Chukwuma-Eneh JSC raised the issue of non-compliance with the Rules of Court in pleading limitation statutes as special defence, nevertheless the Supreme Court still held that limitation statutes vacated causes of action when breached and being an issue of jurisdiction can be challenged for the first time on appeal. This was again reiterated by Mukhtar J.S.C (as she then was, later CJN) in Olagunju v. PHCN (2011) 10 NWLR (Pt.1254) 113 @ p.128, thus: “If a statute provides a time limit for the initiation of an action in court and that time was elapsed, such action becomes otiose with the effluxion of time.” It was further observed @ p. 129, that: “It is a fact that the defendants did not give specific particulars of the defence the raised in paragraph 12 of their amended statement of defence which the learned counsel for defence has made heavy weather on. The fact still remains that it was matter of jurisdiction which could have been raised even in this court for the first time.” In University of Jos v. Adam (2013) LPELR-20276 (CA), Per Agbo, J.C.A, it was held @Pp. 9-10, paras. E-D that: “The importation of the principle or doctrine of waiver in jurisdictional issues is yet to take hold in our jurisdiction. The suit at first instance having been taken more than 5 months after the cause of action had arisen, the cause of action had gone stale and fallen foul of section 2(a) of the Public officers Protection Act.”
From the trend of recent authorities on the issue, it is obvious that the current position of the law is that the issue of statute of limitation, being a jurisdictional issue can be raised at any stage of the proceedings including at Appeal, and that cannot not be waived. Thus, the contention of the Learned Claimant’s counsel that statute of limitation must have to be pleaded before invoking at Address stage no longer represent the current trend of legal development on the issue, and is therefore discountenanced.
Accordingly, I hold that despite the Defendants’ counsel not raising the issue of limitation statute in the pleadings or by way of preliminary objection, the issue remains alive, germane and worthy of considered determination.
The next pertinent question is, when did the cause of action arose in the matter?, so as to determine whether the action was filed outside the prescribed 3 months of the cause of action or ceasing thereof if found to be a continuous cause. From the Claimant’s originating process and pleadings, which are not disputed by the parties, the Claimant while in service, had medical condition which resulted in surgical operation which later developed intestine obstructions resulting in ‘adhesion ban’, and a subsequent operation was performed in his abdomen to save his life. He was invited for medical examination by the 1st Defendant’s Medical Board, and upon examination, the 1st Defendant included his name among Airmen to be discharged on medical grounds with full entitlement vide a signal of Jun 14 (2015). However, another signal was issued amending the earlier one, which now reads that the Claimant was to be discharged involuntarily on medical ground but not entitled to medical disability pension on the ground of chronic alcoholism. Claimant sought for clarifications through his counsel and the 1st Defendant replied through the letter of 22nd December 2015 and the suit was filed on 23rd June 2016. The point of disagreement is on the date of cause of action and if the cause of action is continuous in the circumstance of the case.
The Defendants’ counsel maintains that the cause of action crystallized on the day of the last correspondence between the parties which is 22nd December 2015, when time began to run and the statute of limitation applied after three months (March 2016) but the suit was filed 6 months later in June 2016. The Claimant’s counsel holds the view that the cause of action is continuous and the case fall under the exception allowed in the same provisions of the S.2 POPA which the Defendants’ counsel relied on. Both counsel alluded to 22nd December 2015 correspondence, particularly the Defendants’ counsel who raised the issue, as the date of accrual of cause of action.
The lingering dispute is as to whether the 22nd December 2015 is the last and effective date for time to start running or if the cause of action continued and has not finally crystallized for time to start to run.
This critical document in issue (the 22nd December 2015 letter) was tendered by the Claimant and admitted in evidence as Exh.CM8C). For clarity, the said letter is reproduced:
“ HEADQUARTERS
NIERIAN AIR FORCE
MINISTRY OF DEFENCE
AREA 7, GARKI- ABUJA,
NIGERIA
PMB 0244
Tel. 09-8702694
Email: info@nigerianairforce.net
Reference: NAF/315/COA
Yakubu S. Bawa Esq
Bawa Bawa & Partners,
20 New Zaria Terrace,
Jos , PLATEAU STATE. 22 December 2015
RE: FURTHER PASSIONATE APPEAL FOR PAYMENT OF BENEFITS OF NAF11/25688 ACM MOHAMMED A UNDER DISABILITY PENSION OUTLINED IN PARA 14.22-14.24 OF HTACOS (AIRMEN).
1. Your letter on the above subject matter dated 30 November 2015 is hereby acknowledged. I am directed to inform that your complaint will be investigated and the outcome communicated to you in due course.
2. Please accept the warm assurance of the Chief of Air Staff.
(Signed)
M. SANDA-JIKA
Wing Commander
For Chief of the Air Staff”.
Even a cursory review of this exh CM8C reveals that the Defendants have not closed the issue as it is expected that the Defendants would revert to the Claimant to communicate the Defendants’ final position on the incident giving rise to the cause of action. In the circumstance, while I find that the cause of action arose at the point of the second signal amending the earlier one with subsequent directives to implement the new development, as shown in the following exhibits- NAF MESSAGE FORM with Serial No. AIRSEC/202 A JUN, 14 signed by SQN/LDR E.S ONOBRAKPEYA (Exh. CM4); NAF MESSAGE FORM with Serial No. AIR SEC 268 A MAY 15 signed by AIR CDRE S.A BABALOLA (Exh. CM5); AMENDMENT TO MEDICAL DISCHARGE–AIRMEN dated May, 15 signed by AVM C.N CHUKWU (Exh.CM6); AMENDMENT TO MEDICAL DISCHARGE-AIRMAN BAF11/25688 ACM MOHAMMED A dated 30th June 2015 (Exh. CM7), it is my considered view that the cause of action continues and in fact, reinforced by the tenor of the exh.CM8C, which has not closed the cause of action to cease, for time to begin to run against the Claimant for the purposes of giving effect to the general rule of limitation statute under S.2 POPA.
The S.2 POPA states:
“where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority the following provisions shall have effect-the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in any case of a continuation of damage or injury, within three months next after the ceasing thereof’.
The legal regime of calculation of time for the purposes of application of statute of limitation is ‘when all material facts needed to be proved, have happened, i.e when the cause of action has arisen’. See: Nigerian Ports Authority v. Abu Ajobi (2006) 7 SCNJ 168 @173-174. Accordingly, I resolve this issue against the Defendants, and hold that the suit is not caught by the limitation law as set out in the general provisions of S.2 POPA. It rather falls within the exception thereto. I so hold.
It is time to assume jurisdiction to resolve the main issue in dispute between the parties- Whether the Claimant has proved his case to be entitled to the reliefs sought? Even a perfunctory look at the Reliefs sought for by the Claimants (already set out in the earlier part of this Judgment), shows a smack of poor conceptualization and draftsmanship of suitable reliefs for claims of this nature. To say the least, undue proliferation of Reliefs is not fashionable in modern litigation, particularly employment related claims. The Claimant listed thirteen (13) Reliefs, numbered A-L, fraught with undue duplication and incongruous framing. Going forward necessitated a syntax review of the gamut of the hazy and clumsy drafting of the Reliefs sought, and from what I can decipher, the Claimant is basically asking for- (a) A Declaration that the 1st Defendant’s Signal which originally classified him as eligible for discharge on medical grounds and entitled to disability pension after subjecting him to medical examination of the 1st Defendant’s Medical Board remains valid and subsisting; (b) A Declaration that the 1st Defendant’s subsequent Signal Amending the earlier Signal by which he was later classified as involuntary discharge on medical grounds and not entitled to disability pension for alleged chronic alcoholism without subjecting him to another medical examination is unlawful, invalid, null and void; (c) An Order directing the Defendants to retain him in the previous list of the Signal where after subjecting him to medical examination by the Medical Board, he was classified as entitled to discharge on medical grounds eligible for disability pension pursuant to para.14.22-14.24 of HTACOS (Airmen), and pay him his computed entitlements and outstanding salaries; (d) General damages(N5,000,000) for unlawful reversal and classification under involuntary discharge on medical grounds and not entitled to disability pension on ground of baseless reason of chronic alcoholism; and (e) The cost of this action.
I will proceed with the reviewed draft of the Reliefs sought, now summarized under 3 heads- the 1st bordering on Declaratory reliefs, the 2nd on Substantive order and the 3rd on General damages and Cost. To achieve a refined and justifiable evaluation of evidence on this matter by placing appropriate burden of proof on the deserving side, it is imperative to further elucidate on the applicability of the basic principle of preponderance of evidential burden in civil adjudication, which has been enunciated in M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C as follows:
“.. In civil cases the burden of first proving the existence or non –existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party adduced evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleading have been dealt with. Thus, generally in civil cases the burden of establishing a case can be gleaned from the pleadings lie ultimately on the plaintiff since if no evidence is adduced he would lose his case. Therefore the burden of establishing the contrary would shift to the defendant who would have judgment given against him if nothing is said to rebut the evidence given by the plaintiff. Thus, the burden of proof in civil cases preponderates, and the court is expected to give judgment on the preponderance of evidence after placing the totality of the respective evidence adduced by the parties on an imaginary scale of justice, weigh them and find out which of the two is heavier before arriving at its decision”.
S. 136 (1) Evidence Act 2011 provides for placing of burden of proof as to particular fact., when it states: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”. S.136(2) goes ahead to state that: “In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively”.
With these judicial and statutory prescription and exposition of the role sharing of burden of proof and extent of proof to discharge the burden in civil trial, it is no longer in doubt who has the onerous burden to prove particular fact and at least, that the burden of proof in civil litigation is never static, but preponderates depending on what material facts is in issue to be established to assist in advancing the case of the either side of the divide, as in the instant case.
Having gone thus far, it is time to consider the Claimants’ Reliefs as reviewed:
a) A Declaration that the 1st Defendant’s Signal which originally classified him as eligible for discharge on medical grounds and entitled to disability pension after subjecting him to medical examination of the 1st Defendant’s Medical Board remains valid and subsisting;
(b) A Declaration that the 1st Defendant’s subsequent Signal Amending the earlier Signal by which he was later classified as involuntary discharge on medical grounds and not entitled to disability pension for alleged chronic alcoholism without subjecting him to another medical examination is unlawful, invalid, null and void;
(c) An Order directing the Defendants to retain him in the previous list of the Signal where after subjecting him to medical examination by the Medical Board, he was classified as entitled to discharge on medical grounds eligible for disability pension pursuant to para.14.22-14.24 of HTACOS (Airmen), and pay him his computed entitlements and outstanding salaries;
(d) General damages(N5,000,000) for unlawful reversal and classification under involuntary discharge on medical grounds and not entitled to disability pension on ground of baseless reason of chronic alcoholism; and
(e) The cost of this action.
Reliefs (a) and (b) are declaratory reliefs. What is the extent of discharge of burden of proof on the Claimant seeking declaratory reliefs? The law is that even an admission of the Claimant’s pleadings by the Defendants is not enough to anchor and sustain reliefs bordering on declaration of rights. Thus, the law requires that the Claimant should succeed on the strength of his own evidence not on the weakness of the Defendants. In other words, where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in pleading of the defendant, that he is entitled to the declaration. Thus, in order to obtain a declaratory relief as to right, there has to be evidence which supports an argument as to the entitlement to such a right See: Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D.
The question remains, did the Claimant lay sufficient and cogent evidence to support his declaratory reliefs? In my view, the key elements of reliefs (a) and (b) are- whether the Claimant was subjected to prior medical examination by the Medical Board of the 1st Defendant before the 1st Defendant issued the Signal classifying the Claimant as eligible for Discharge on medical grounds and entitled to disability pension, and what prompted the Amendment changing Claimant’s classification to involuntary discharge on medical grounds and not entitled to disability pension for reason of chronic alcoholism?
From the pleadings and testimony of CW1, the case of the Claimant is that he was enlisted in the Nigerian Air force (NAF) and while serving in the 75 Strike group NAF Yola, Adamawa State, he developed ill-health, and was diagnosed with Appendicitis, which he was operated on, but which later developed acute intestinal obstruction. Upon reference to Federal Medical Centre Yola from the NAF Medical Centre, surgery of ‘explorarory laparatomy’ and ‘hemicolectomy’ was done on him, where a portion of his intestine was removed due to gangrene. That after he resumed duty, he was invited by the Medical Examination Board of the 1st Defendant, after which it was recommended that he would be discharged on medical disability with pension, as he was no longer physically fit as required of him on the job. He was later invited to Lagos for documentation in preparation for his supposed entitlements, and the 2nd Defendant also issued signals to all the Units across the country confirming the approval of his said discharge among others.
Surprisingly, while awaiting the processing of payment of his entitlements for the discharge, another signal was issued titled ‘Amendment to Medical Discharge Airmen’ stating that the earlier Medical Discharge signal issued has been amended to read Involuntary Discharge on Medical Ground, and in his case, for reason of ‘Chronic Alcoholism’, and as result, he would be discharged without any entitlement. Despite efforts and plea by his Solicitors to prevail on the Defendants to reverse the amendment as it affects him, the 2nd Defendant merely stated in a Reply that the issue would be investigated since 22nd December 2015, hence this suit.
Being an Expert Witness, the testimony of the subpoenaed Chief Medical Director of the Federal Medical Centre (FMC) Yola, CW2, threw more light on the nature and causative sources and the medical effects of the ailments that befell the Claimant. He confirmed being involved in the surgery operation of the Claimant including the diagnosis. He stated that the Claimant was his patient, who was referred from their NAF Clinic to FMC Yola on 4th June 2013. That he was admitted in the Emergency Ward, and was fervently managed and examined by a team of Doctors led by one Dr. Ibrahim and himself, and the Claimant was diagnosed of swollen abdomen. And as his case escalated, he was slated for emergency surgery, where it was found that he had some rotten intestine, which were removed and the remaining loop joined.
He further testified that this was the second surgery done on him at the FMC, as the 1st was in 2012 for Appendicitis, also by referral from the NAF Medical Centre. He stated that from professional point of view, he found that the 2nd surgery was as a result of complication associated with the 1st surgery, which developed a condition called ‘Adhesion ban’, which obstructed the Claimant’s abdomen. He ruled out alcohol as a causative agent of such ailment, stating that such ailment is a common occurrence usually caused by hyena, adhesion ban (growth from stomach surgery), tumors, cancer, and electrolyte imbalance and even hook worm. He stated that such is a very severe ailment with only few survivors without surgery.
To further interrogate whether the Claimant has presented sufficient evidence to prove his case by preponderance of evidence, the relevant exhibits on the issue are reproduced below:
“NAF MESSAGE FORM with Serial No. AIRSEC/202 A JUN, 14 signed by SQN/LDR E.S ONOBRAKPEYA (Exh. CM4) reads:
“CAS HAS APPROVED THE MED DISCHARGE OF U/N AIRMEN/AIRWOMEN WITH DISABILITY PENSION INDICATED AGAINST THEIR NAMES…..NAF 11/25688 ACM MOHAMMED A…….PMG IS TO PROCESS AIRMEN/AIRWOMEN’S DOCUS TO MPB FOR PAYMENT OF BENEFITS ACCDLY.”
NAF MESSAGE FORM with Serial No. AIR SEC 268 A MAY 15 signed by AIR CDRE S.A BABALOLA (Exh. CM5) reads:
“AMDT TO MED DISCHARGE- AIRMEN PD REF AIRSEC/202 DTG 031610A JUN 14 PD PLEASE AMEND MED DISCHARGE IN RESPECT OF UNDERLISTED AIRMEN TO NOW READ INVOLUNTARY DISCHARGE ON MEDICAL GROUNDS PD MED REVIEW BOARD IN RESPECT OF THE AIRMEN ESTB THAT THEY ARE NOT ENTITLE TO DISABILITY PENSION OUTLINED IN PARA 14.22-14.24 OF HTACOS AIRMEN PD …………….. NAF 11/25688 ACM MOHAMMED A……. DETAILS OF REASONS FOR AMDT HAVE BEEN COMMUNICATED TO ALL UNITS VIDE REF NAF/325/AIRSEC DATED 19 MAY 15 PD SPECIAL INST CMM UNIT COMDS ARE TO ENSURETHAT THE REASONS ARE TREATED AS MED IN CONFIDENCE PD ALL OTHER DETAILS REMAIN UNCHANGED”.
AMENDMENT TO MEDICAL DISCHARGE–AIRMEN dated May, 15 signed by AVM C.N CHUKWU for CAS (Exh.CM6) reads:
“Reference: A AIRSEC/202 DTG 031610A JUN 14
1. Further to Reference A please amend medical discharge in respect of the airmen listed at Annex A to now read Involuntary Discharge on medical grounds. The Medical Review Board in respect of the airmen established that they are not entitle to disability pension outlined in Para.14.22-14.24 of HTACOS (Airmen) for reasons indicated against their names .Unit Commanders are to strictly treat contents of Annex A as Medical in Confidence
2. Gratefully treat
Annex: A. List of Airmen for Involuntary Discharge on Medical Grounds
ANNEX A TO NAF/325/AIRSEC DATED MAY 15
LIST OF AIRMEN FOR INVOLUNTARY DISCHARGE ON MEDICAL GROUNDS
| Serial (a) | Svc No (b) | Rank (c) | Names &
Initials (c ) |
Reasons (e) | Remarks (f) | |
| 14 | NAF 11/25688 | ACM | MOHAMMED A | Chronic Alcoholism | ||
“
AMENDMENT TO MEDICAL DISCHARGE-AIRMAN BAF11/25688 ACM MOHAMMED A dated 30th June 2015 (Exh. CM7) reads:
Reference
A NAF/325/A/AIRSEC dated 19 May 15
Further to Reference A, please amend the reason for the medical discharge of above named airman listed as Serial 14 of Annex A to now read ‘HTACOS does not make provision for disability pension in cases of ‘intestinal Adhesions’. Inconveniences regretted”.
TO WHOM IT MAY CONCERN written by the Federal Medical Centre Yola through Dr.Abdullaziz Rabiu Baka dated 03/06/13 (Exh. CM3) reads:
“FEDERAL MEDICAL CENTRE, YOLA
Lamido Zubairu Road, P.M.B 2017, Yola Bye-Pass Yola Town, Adamawa State
(Office of the Medical Director)
FMCY/07/VOL.1/XX 3rd June, 2015
TO WHOM IT MAY CONCERN
Dear Sir,
RE: MUHAMMED AUWAL, AGE 25 YEARS, HOSP NO.00519
The above named patient was seen in our hospital on January, 2013 with acute intestinal obstruction.
He had exploratory laparatomy done on the 1st January 2013. He had right hemicolectomy done where a portion of his intestine was removed due to gangrene.
You may wish to assist him.
Yours faithfully
(Signd)Dr. Abdulaziz Rabiu Baka”
From the pleadings and evidence tendered, it is common ground between the parties that prior to the 1st signal of discharge of the Claimant, he was examined medically by the Medical Board of the 1st Defendant, but there was no evidence of any subsequent medical examination at the point of issuing the Amended Signal to change the classification of the Claimant’s discharge on medical grounds with entitlement to disability pension to involuntary discharge on medical grounds not entitled to disability pension for reason of chronic alcoholism.
The Claimant vehemently opposed and denied being involved in alcoholism. In paragraphs 24- 26 of CW’s Witness Statement on Oath, he averred as follows:
“24. That I was shocked and dismayed that the reason adduced by the Defendants for my discharge as captured in the document was on alleged chronic alcoholism contrary to the earlier position as contained in the first signal.
25. That I was dismayed to have received such shocking and baseless information, reason being that throughout my stay with the 1st Defendant I was never found guilty of any offence that was related to alcoholism.
26. That I was never queried, tried or punished by the Defendants regarding any offence related to alcoholism hence for the Defendant to change my discharge on medical grounds with disability pension to involuntary discharge on medical ground based on chronic alcoholism is an allegation that is defamatory, baseless and unfounded”.
Defendant’s counsel did not cross-examine the Claimant on these vital averments. Flowing from the above, I am satisfied that the Claimant has sufficiently discharged the onus of proof on preponderance of evidence placed on him in respect of declaratory reliefs. I so hold.
In furtherance of the onus–sharing scheme in civil litigation, the evidential burden now shifts to the Defendant to justify the basis of the assertion that the Claimant was involved in ‘chronic alcoholism‘, to warrant the amendment of his discharge from Discharge on medical grounds entitled to disability pension to Involuntary Discharge on medical ground not entitled to disability person, for reason of chronic alcoholism. DW’s attempt at discharging this evidential burden was made in paragraphs 3 (a)-(d) of the DW’s Witness Statement on Oath, wherein he averred that:
“(a).The medical investigation of the Claimant medical condition revealed that chronic alcoholism which was self inflicted was responsible for the Claimant medical condition.
(b). There is no provision for disability pension in cases of intestinal adhesions which arose on account of self inflicted injury on account of chronic alcoholism as that of the Claimant.
(c). The Medical Board examined and assessed the Claimant as medically unfit which made the Claimant liable to be discharged without medical disability pension.
(d). The Defendant in reaction to the averment in paragraph 15 and 16 of the Claimant Statement of claim states that an erroneously classification (sic). State that the Defendants had to correct the erroneous classification of the Claimant has been entitled to disability pension through an amendment forwarded through a signal to all Commands and Units for proper guidance and correction”.
I find that the basis of this change/amendment is questionable particularly as it alleged that the Claimant was involved in chronic alcoholism. No medical or other documentary evidence was tendered by the Defendant to substantiate this allegation, anchoring the denial of the Claimant his entitlements. Such allegation ought to be clarified to be able to sustain the abrupt amendment of the earlier signal. No reason was also given in the later Amended Signal and subsequent correspondences (exh.CM4-7 reproduced above), to justify the new classification of the Claimant, contrary to the deposition of the DW that ‘the Defendants had to correct the erroneous classification of the Claimant’. CW1 had averred that he was never involved in alcoholism and never had query relating to alcoholism in the course of duty. I find that this vital assertion by the CW1 was not subjected to cross-examination or contradicted or rebuffed by any iota of evidence on the part of the Defendants.
What is left is a bare assertion in the Defendants’ pleadings and testimony of DW in the said paragraphs 3(a)-(d) of his Witness Statement on Oath. From the records, no evidence whatsoever was laid to support this grievous assertion of ‘chronic alcoholism’ being ‘self inflicted by the Claimant’, throughout the length and breadth of the Defendants’ pleading and at the trial. In Akande v. Adisa [2012] 15 NWLR (Pt. 1324) S.C. 538@ P. 574, Para. D, the Supreme Court while deciding on treatment of averment not supported by evidence, held that: “Where an averment is not supported by evidence, the averment is deemed abandoned”. In Olusanya v Osinleye [2013]7NWLR (Pt.1367)SC148 the apex court further elucidated the effect of pleading not backed by evidence and held that “any pleading not backed by evidence goes to no issue and should be disregarded by the court. Pleadings do not constitute evidence, and therefore where such pleading is not supported by evidence oral or documentary, it is deemed by the court as having been abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned”.
DW appears to have a scanty knowledge of both the medical and legal aspects of the basis of the change/alteration/amendment of the signal communicating the discharge of the Claimant. He is a mere legal clerk in the Legal Directorate of the 1st Defendant, with neither a medical nor legal expertise/experience in respect of the critical issue in dispute in the matter, and made no clarifications or provided insights or tendered any document to substantiate the bare assertions made in the pleadings in respect of the lingering issue of the reason for the Defendants’ amendment of the Claimant’s discharge already approved and communicated in the initial Signal. I therefore find the DW’s testimony unhelpful in resolving the main issue in dispute.
The 2nd Defendant in a Reply letter dated 22nd December 2015 (exh. CM8C reproduced above) informed the Claimant’s Solicitors that the matter would be ‘investigated and the outcome communicated’, yet no evidence of such investigation was communicated, about six months before the suit was commenced, perhaps after infinite wait by the Claimant. The only viable evidence on the issue in dispute came from the Medical evidence adduced by the DW2, the Chief Medical Director FMC Yola, who medically examined and performed surgery on the Claimant. His expert evidence excluded alcohol as remote or direct cause of the Claimant’s ailment. He confirmed that such ailment is very severe and victims hardly survive it without surgery. I find his testimony very professional and direct to the issue in dispute. I believe him and would rely on his medical expertise in resolving the issue in dispute.
As it stands, I find that the Amended Signal did not provide any justifiable reason for the change/alteration of the original Signal approved by the CAS that listed the Claimant for Discharge on Medical grounds with Disability Pension. The court has inherent power to reverse administrative acts of public officer found to be fraught with error. See: Edet v. Chief of Air Staff [1994]2 NWLR (Pt.324)23 @64. In the circumstance, the reviewed declaratory reliefs succeed. Accordingly, it is hereby declared that the 1st Defendant’s Signal which originally classified him as eligible for discharge on medical grounds and entitled to disability pension after subjecting him to medical examination of the 1st Defendant’s Medical Board remains valid and subsisting.
It is further Declared that the 1st Defendant’s subsequent Signal Amending the earlier Signal by which the Claimant was later classified for Involuntary Discharge on medical grounds and not entitled to disability pension for alleged chronic alcoholism without subjecting him to another medical examination is unlawful, invalid, null and void, the Defendants having not provided official reason warranting the amendment of the already approved classification.
The reviewed Relief (c) is a substantive claim for compliance. Having succeeded in the declaratory reliefs, the essence of this substantive relief is to give effect to the declaratory judgment already awarded in favour of the Claimant in the course of this Judgment. The Paragraph 14.22-14.24 of the ARMED FORCES OF NIGERIA HARMONIZED TERMS & CONDITIONS OF SERVICE (HATCOS) FOR SOLDIERS/RATINGS/AIRMEN 2012 (REVISED) tendered in evidence at the trial by the CW and marked as exh.CM9, provides for DISABILITY PENSION, with tables stipulating categories for pension payable. From the records, the Defendants’ main contention stated in exh. CM7 was that the Claimant’s ailment of ‘intestinal adhesion’ is not provided for in the HATACOS, which ‘does not make provision for disability pension in cases of intestinal adhesions’. However, CW1 had averred in paragraph 51 of his Witness Statement on Oath, “That by the provisions of Harmonized Terms & Conditions of Service for Soldiers/ Ratings/ Air Men 2012 (revised) at page 58 under OTHER DISABILITIES I am entitled to be paid 100% by assessment of percentage and by the Description of my injury which is very severe in nature”. Given the medical evidence already adduced by CW2 of the severe nature of the Claimant’s injury, I am satisfied that the Claimant’s ailment can be rightly classified under the category of OTHER DISABILITIES ( serial 1- Description of Injury- very severe) as contained in the said HATCOS. I so hold and direct.
Available evidence in Exh.CM1 clearly confirms that the Claimant was in active service/duty while he was afflicted with the ailment, as he was admitted in the Defendant’s Medical Centre in Yola from where the reference was made to FMC Yola where he was examined and the major surgeries performed on him, before his invitation by the Defendants’ Medical Board, which culminated in the recommendation for his discharge on medical grounds.
Having found and declared the unlawfulness and invalidity of the Amended Signal reversing the already approved Discharge of the Claimant on medical grounds with disability pension, the Defendants are hereby directed to retain the Claimant in the previous list of the Signal where he was classified as entitled to discharge on medical grounds eligible for disability pension pursuant to para.14.22-14.24 of HTACOS (Airmen).
The Defendants are further directed to compute and pay to the Claimant his disability pension entitlements pursuant to the para.14.22-14.24 of HTACOS (Airmen) and any of his outstanding salaries prior to the effective date of his formal Discharge.
The reviewed Relief (c) is for general damages in the sum of N5, 000,000 (five million). The law is that general damages are actionable per se and arises upon breach/wrong complained of. It is compensatoary in nature and need not be specifically pleaded and strictly proved. See: UBNPlc v. Ajabule [2011]18NWLR (Pt.1278) SC152. The breach/wrong here is the Defendants’ unlawful reversal of the Claimant’s already approved Discharge on medical grounds with disability pension and on the basis of an unsubstantiated allegation of ‘chronic Alcoholism’. In the circumstance, I hereby award the sum of N500, 000 (five hundred thousand naira) as general damages against the Defendants in favour of the Claimant, which sum shall be paid with the Claimant’s computed disability pension entitlements and any outstanding salaries prior to effective date of his formal discharge.
The reviewed Claimant’s Relief (d) is for the cost of this action. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold
Accordingly, I make the following Orders to give effect to the terms of the Judgment:
1. Defendants shall retain the Claimant in the previous list of the Signal where he was already classified and approved as entitled to discharge on medical grounds eligible for disability pension pursuant to Paragraph 14.22-14.24 of the ARMED FORCES OF NIGERIA HARMONIZED TERMS& CONDITIONS OF SERVICE (HATCOS) FOR SOLDIER /RATINGS/AIRMEN 2012 (REVISED)-HTACOS (Airmen).
2. The Defendants shall compute and pay to the Claimant his disability pension entitlements pursuant to the para.14.22-14.24 of HTACOS (Airmen) and any of his outstanding salaries prior to the effective date of his formal Discharge, within two (2) months of this Judgment.
3. The sum of N500, 000 (five hundred thousand naira) is hereby awarded as general damages against the Defendants in favour of the Claimant.
4. Monetary payments in this Judgment shall be paid by the Defendants to the Claimant within two (2) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
Judgment is entered accordingly. I make no order as to cost.
————————————-
Hon. Justice N.C.S Ogbuanya
Presiding Judge
03/10/18
