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BOY CPL SADIQ A. MUHAMMED (INFANT) & ORS -VS- THE NIGERIA ARMY

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON THURSDAY 5TH DAY OF DECEMBER 2019

BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/KD/18/2017

BETWEEN:

BOY CPL. SADIQ A. MUHAMMED (INFANT)…CLAIMANT

(By Abdulrasheed Sadiq – His Next Friend)

AND

THE NIGERIA ARMY……………………………DEFENDANT

J U D G M E N T

At the commencement of this suit, the Claimant was a minor and a former student of the Nigerian Military School, Zaria Kaduna (The School). Hence, this action was filed by his next friend, Abdulrasheed Sadiq. The Claimant was dismissed by the School for the offence of attempt to commit an offence. His contention however is that, he was not accorded fair hearing and that due process was not followed by the Defendant before his dismissal. He therefore challenged the dismissal as unconstitutional, invalid and unlawful.

  1. By aComplaintand Statement of Claim filed on 04/07/2017 by his next friend, the Claimant’s claims the following reliefs:
  2. A Declaration that the dismissal of the Claimant by Brigadier General M.M. Bunza, the Commandant of the Nigerian Military School, Zaria on 31st March, 2017 following a purported summary trial, was done in violation of the Claimant’s right to fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria (1999) as amended.
  3. A Declaration that the said summary trial be (sic – by) the Claimant’s Commander after an initial Boys Battalion Commander trial for which he was awarded 6 days of hard labour amounts to double jeopardy and a violation of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  4. A Declaration that the said dismissal of the Claimant by Brigadier General M.M. Bunza was ultra vires and in contravention of the provisions of Section 247 (1) and (2) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004.
  5. An Order setting aside the purported summary trial of the Claimant pursuant to which he was dismissed; and an order setting aside the said order of dismissal for being unconstitutional, null, void and of no effect whatsoever.
  6. An Order reinstating the Claimant to the status quo ante, his dismissal on 31st March, 2017 and payment of all his accrued entitlements and emoluments from the said date of dismissal.
  7. The Defendant joined issues with the Claimant by filing itsStatement of Defenceon 15/11/2018; and later amended the Witness Statement on Oath by an order of Court made on 13/12/2018; wherein it denied the substance of the claim. The Defendant’s contention is essentially that the trial and dismissal of the Claimant from the Nigeria Army by the Commandant was proper and in accordance with the Law.

The Claimant did not file a Reply to the Defendant’s Statement of Defence.

  1. At the plenary trial, the Claimant who is now an adult, testified in person as CW1 and called no witness. He adopted his Witness Deposition on Oath and tenderedtwo(2) documents in evidence as exhibits to support his case. The case of the Claimant was closed after being cross – examined by the learned Defendant’s counsel.
  2. The Defendant in turn called a sole witness, oneCapt. T. M. Sulaiman, the Acting Adjutant of the Nigeria Military School, Zaria Kaduna State. In like manner, he adopted his Witness Deposition on Oathand further tendered eight (8) sets of documents as exhibits to support the defence. These exhibits are listed as follows:
  3. Investigation Report on alleged case of sodomy dated 23/07/2017 asExhibit D1.
  4. Statement Forms of Sadiq A. Mohammed, Muiz O. Titiloye, Salihu H. Musa and Muhammed Abbas asExhibits D2, D2A, D2B and D2Crespectively.
  5. Charge Sheets for the trial of the Claimant for the offences of disobedience to standing orders punishable under Section 57 (1) of the Armed Forces Act (supra) and attempts to commit offences punishable under Section 95 of the Armed Forces Act (supra) asExhibits D3 and D3Arespectively.
  6. Record of proceedings in the trial of Sadiq Muhammed, (the Claimant) and Muiz Titiloye of 31/03/2017 asExhibit D4.

The witness was also cross – examined by the learned Claimant’s counsel.

  1. Thereafter, parties through their respective learned counsel filed and exchanged their written final addresses as prescribed by the provisions ofOrder 45of the Rules of this Court.

In the address filed on 07/08/2019, the Defendant’s learned counsel, M. E. Salihu, Esq., formulated a sole issue as having arisen for determination in this suit, that is:

Whether on the preponderance of evidence before this Court the Claimant has been able to establish his claims to entitle him to the reliefs claimed.

The learned counsel for the Claimant, A. I. Omachi Esq, adopted the issue as raised by the learned Defendant’s counsel in the address filed on 26/08/2019.

The Defendant did not file a Reply on Points of law to the Claimant’s written address.

  1. Flowing from my understanding of the Claimant’s claim, the totality of the pleadings, the relevant evidence adduced at the trial, including the documents tendered as exhibits, the arguments articulated in the parties’ final submission and the totality of the circumstances of this case, the focal issue that call for resolution in this suit without prejudice to the issues raised by the parties can be succinctly reframed as follows:

“Whether from the totality of evidence before the Court, the trial and consequential dismissal of the Claimant from the Nigeria Military School, the Claimant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria was not breached and whether his dismissal was in accordance with the relevant provisions of the applicable law?”

As I proceed to resolve this issue, I had also given careful consideration to and taken due benefits of the final written and oral arguments as canvassed by learned counsel for the contending sides; and whenever I deem it necessary in the course of this judgment, I shall make specific reference to their submissions.

  1. It is pertinent to remark that the focus of the Court is directed principally at the documents tendered as the yardstick to access the oral evidence adduced by the witnesses on either side of the divide. This course is in consonance with the established legal proposition that documentary evidence, being the best evidence, is the yardstick or hanger by which to access the veracity or credibility of oral testimony and that extrinsic evidence cannot be admitted to contradict it, add or vary the provisions contained in a document. SeeSection 128(1) of the Evidence Act 2011on the issue. See also Skye Bank PLC Vs Akinpelu [2010] 9 NWLR Pt 1198 Pg 179 (SC); Ndubueze Vs Bawa 2018 [LPELR] 43874.
  2. The relevant testimony of the Claimant asCW1is to the effect that he was a Boy CPL in the Nigerian Military School and as such, he was subject to service law under the relevant provisions of the Armed Forces Act Cap A20 Laws of Federation of Nigeria 2004 – AFA. CW1 testified that he was served with a letter dated 31/03/2017, addressed to his father by which he (CW1) was summarily tried and dismissed from the Nigeria Military School for the offence of sodomy or attempted sodomy under Section 95 of AFA.

CW1 contends that the allegations were not true as he was never involved in such offence; that his dismissal was shrouded with a lot of irregularities; that his rights to fair hearing was violated in the purported trial culminating to his dismissal and that he was tried and punished twice on the same allegations which amounted to double jeopardy.

CW1 further contends that the dismissal awarded to him by the Commanding Officer as Boy CPL in Nigeria Military School was in excess of the punishment for a Boy CPL as provided by Section 274 (1) and (2) of the AFA (supra) and alleged further that the Commandant has no power to dismiss him.

CW1 testified further that his counsel wrote a letter dated 08/06/2017 to the Commandant, Nigeria Military School, Zaria to redress his unlawful dismissal and for his reinstatement but there was no reply to the letter.

The letter of dismissal dated 31/03/2017 and the solicitor’s letter dated 08/06/2017 were admitted in evidence as Exhibits C1 and C2 respectively.

  1. Under cross-examination by the Defendant’s learned counsel, the Claimant testified that he appeared before two different panels and for different offences and that the panels had different officers as heads of panel; the first panel headed by the Battalion Commander was for the offence of disobedience to standing orders to which the Claimant was awarded the punishment of six (6) days imprisonment with hard labour;whilst the second panel which was headed by the Commandant of Nigeria Military School was for the offence of attempt to commit an offence and for which he was summarily dismissed.
  2. The Defendant, on the other hand, disputed the claims of the Claimant. The testimony of theDW1, is to the effect that the Claimant was first investigated by the Military Police and the Boys Battalion Commander; that it was revealed from the voluntary statements,(Exhibits D2 – D2C) of the Claimant, the witnesses namely, Musa S. Habibu, Abbas Z. A. Mohammed and Titiloye Muiz – and from the report of investigation – (Exhibit D1), that the Claimant and one Boy Titiloye Muiz had case to answer.

DW1 further testified that after the investigations and findings, the Claimant was charged with two offences on two separate charge sheets for the offences of disobedience to standing order and attempt to commit offence; that for the first offence, the Claimant was summarily tried and awarded with the punishment of six (6) days IHL, whilst the other offence of attempt to commit an offence was referred to the Commandant of NMS who has the jurisdiction to try same.

DW1 also testified that the arraignment and proceedings of the trial of the Claimant before the Commandant on 31/03/2017 was recorded. The record of proceedings was admitted in evidence as Exhibit D4. DW1 testified further that the Claimant was accorded all the administrative requirements necessary for free and fair trial.

  1. From the evidence garnered from the witnesses, there is no dispute between the parties that the Claimant was a student ofNMS and that he was subject to service law under the Armed Forces Act (supra) (AFA). This Act is applicable to the Claimant by virtue of Section 274 AFA. There is also no dispute that the Defendant is an establishment of the said statute.

Needless to say, that it is now settled beyond peradventure that he who alleges must prove. Therefore, the burden of proof is on the Claimant to prove that he was unlawfully dismissed by the Defendant to be entitled to his claims.

Parties are ad idem on the fact that the Claimant was charged and summarily tried for two offences; that he was summarily charged and punished for the offence of disobedience to lawful orders and that he was tried and found guilty on the offence of attempt to commit offence for which he was consequently dismissed by the Commandant.

  1. Now, the grouse of the Claimant is that his right to fair trial was violated in the purported trial that culminated to his dismissal. In order to appreciate the Claimant’s contention on this issue, I have taken liberty to reproduce the relevant paragraphs of the Depositions on Oath relating to his trial and dismissal.

Paragraph

  1. That facts in support of my pleading of violation of my fundamental rights are:
  2. I was not advised on my right to either represent myself or by a counsel of my choice in respect of the criminal allegations brought against me.
  3. That I was not allowed to defend myself or call witnesses of my choice in my own defence.
  4. That I further state as follows:
  5. That I was arraigned before the Boys Battalion Commander trial on the same allegations and awarded a sentence of 6 days of hard labour.
  6. That subsequent to the trial and punishment awarded above, I was arraigned before the Commandant of the NMS based on the same allegations as the offence for which I had been tried and was dismissed for the same offence in violation of my right to fair hearing.
  7. That in view of the above – stated facts, my purported subsequent trial amounted to double jeopardy and in contravention of Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  8. That apart from the said subsequent trial being ultra vires, the punishment of dismissal awarded in consequence thereof was excess of the punishment provided for in Section 247 (1) and (2) of the Armed Forces Act for a Boy of the NMS in which category I belong.
  9. I reckon that the resolution of the dispute between the parties in this suit devolves substantially on the evidence of the parties particularly the exhibits tendered at the trial and the relevant sections of the Armed Forces Act (supra) on discipline of officers particularly, the discipline of a Boy, the category the Claimant belonged when he was with the Defendant.
  10. Perhaps, it is pertinent at this juncture to state and as correctly submitted by respective learned counsel, that from the evidence elicited from the Claimant under cross – examination by the learned Defendant’s counsel and by –Exhibits D3and D3A – the charge sheets, it has been established that the plea of autre fois convict and/or double jeopardy raised by the Claimant has not been established. And I so hold.
  11. Now, the Constitution of any country is an embodiment of what the people desire to be their guiding light in governance, that is, their Supreme law. The purport ofSection 36 subsection 1 of the 1999 Constitution (as amended)is to ensure fair hearing to all parties in determination of anybody’s civil rights and obligations. The principle of fair hearing is all about fairness which is the determining factor for the application of natural justice. See: Deduwa Vs Okorodudu [1976] 9-10 SC 329; Newswatch Communication Ltd Vs Atta [2006] 12 NWLR (Pt 993) 144; Oyewole Vs Akande [2009] 15 NWLR (Pt 119) 148
  12. I had earlier reproduced the Claimant’s testimony on the alleged violation of his right fair hearing at the trial. Relying on the case ofMTN Vs Mundra Ventures (Nig) Ltd[2016] LPELR 40343, the learned Claimant’s counsel had argued that the evidence of DW1 was unchallenged and that the defence offered was a general defence but did not contain any specific facts that contradicted the evidence of the Claimant on the violation of his right to fair hearing by the Defendant.

I disagree with the submission of the learned Claimant’s counsel on that the evidence of the Claimant was unchallenged. The evidence of DW1 is that the arraignment and proceedings/trial of the Claimant and the co-accused was recorded and that the Claimant was afforded all the opportunity to defend himself. The record of proceedings of the trial of the Claimant – Exhibit D4 was admitted in evidence in support of the defence.

  1. Now, the Apex Court has stated that fair hearing must involve a fair trial and that a fair trial of a case consists of the whole hearing.In the case ofYusufu Garba & Ors Vs University of Maiduguri [1986] 1 NWLR (Pt 18) 550 while interpreting Section 33 of the Constitution of the Federal Republic of Nigeria, 1979 which section is in pari materia with Section 36 of the 1999 Constitution (as amended), it was held that fair hearing implies that –

(a) A person knows what the allegations against him are.

(b) What evidence has been given in support of such allegations?

(c) What statements have been made concerning those allegations?

(d) Such person has a fair opportunity to correct and contradict such evidence.

(e) The body investigating the charge against a person must not receive evidence behind his back.

In other words, the real issue where the question of fair hearing has been raised is, whether an opportunity of hearing was afforded to the parties entitled to be heard, and by hearing it means full hearing; allowing the parties to put in all they have.

  1. I had carefully perused the contents ofExhibit D4– the record of proceedings of the trial; the facts emanating from the entire proceedings are enumerated as follows:
  2. That the father of the Claimant was present at the proceeding at his (the father) request;
  3. That the Claimant pleaded not guilty to the charge when read to him;
  4. That the Commandant asked the Claimant state his defence to the charge;
  5. That in the course of stating his defence, the Commandant intermittently asked questions from the Claimant to further clarify some points and to which the Claimant provided answers;
  6. That the Military Police and the Boys Battalion Commander were called to give evidence of their investigations and they both stated that the Claimant, one Titiloye Muiz (the co – accused) and three boys who were witnesses to the incident had made written statements;
  7. That the three witnesses namely, Abbas, Musa and Abu were called to testify and they were cross – examined by the Commandant;
  8. That the co – accused, Titiloye was also arraigned and pleaded not guilty;
  9. That after the hearing the evidence of the Claimant, the co – accused and the witnesses of the Defendant, the Commandant pronounced both the Claimant and the co – accused guilty of the offence of attempt to commit sodomy and they were both dismissed from the Nigeria Military School.
  10. I note that apart from the fact that the Commandant informed the Claimant mid-way of the proceedings that he was allowed to record the proceedings (Page 14 of Exhibit D4), the Claimant did not ask the witnesses (who made the statements in Exhibits D2B and D2C) any question; he also did not call any witness (not even the evidence of the boys who were in the room with the Claimant and his co – accused on the day of the incidence was afforded the Claimant).

While answering questions under cross examination by the learned Defendant’s counsel, the Claimant testified as follows:

“Witnesses were called but I was not allowed to call any witness”.

The DW1 on his part testified under cross – examination as follows:

“The witnesses called for the alleged offences were also available as defence witnesses to the Claimant. The procedure is to respond to the witnesses but not to ask question through cross – examination”. The facts of disobedience to standing orders did not emanate from the same facts because we have the school standing orders.”

  1. Now, can one say in all honesty, that in those circumstances, the Claimant was given an opportunity to be heard against an alleged criminal offence?

It is settled law that the true test of fair hearing is the impression of a reasonable person who was present at the trial whether or not from his observation; justice has been manifestly done in the case.

In order to be fair, “hearing” or “opportunity to be heard” in proceedings must include a party’s right to give evidence by himself, call witnesses, if he likes, and make oral submissions personally or through a counsel of his choice. See Pam Vs Mohammed [2008] 16 NWLR (Pt 1112) Page 1 at 49 where Oguntade JSC, (as he then was) held as follows:

“The simple approach is to look at the totality of the proceedings before the Court or tribunal and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances. A proceeding where Appellant did not cross-examine or contradict the witness called by the Respondent and consent or object to the exhibits tendered and admitted as exhibits cannot be said to be fair, to say the least.”

See also:  Nwanegbo Vs Oluwole [2001] 37 WRN 101; Dawodu Vs N.P.C. [2000] 6 WRN 116; Mohammed Vs Kano NA [1968] 1 All NLR 411; Ajayi Vs Idowu [2010] LPELR 3673;  

  1. The learned Defendant’s counsel had argued that during the proceedings, the Claimant had admitted that the testimonies of the witnesses were true while being cross – examined by the Commandant; and that by so admitting, the Claimant has not discharged the burden that he was denied fair hearing. Learned Defendant’s counsel further argued that the Claimant’s trial was not strictly a criminal trial but a disciplinary hearing conducted in line with the School’s Rules and Regulations.

I do not agree with the arguments of the learned Defendant’s counsel going by the records of the trial at Pages 9 -10 of Exhibit D4. The admission of the Claimant to the testimony of the 1st witness was in relation to the fact that he (the Claimant) entered the co – accused’s room thrice and the so called admission as posited by the learned Defendant’s counsel was not an admission of committing the offence of attempt.

  1. It is settled law, that the burden of proof, in any suit or proceeding rests on the person who would fail if no evidence at all were adduced in the suit. Generally, that burden is on the Claimant or Plaintiff who has approached the Court for remedy for a wrong he perceives he has suffered due to the act or omission of the Defendant. That burden is generally referred to as the ultimate or legal burden. The evidential burden on the other hand is determined by the pleadings and always tilts from one side of the case to the other, as the case progresses.The evidential burden is governed by Section 133 of the Evidence Act, 2011. See Buhari Vs INEC[2008] 19 NWLR (Pt 1120) 246; Okoye & Ors Vs Nwankwo [2014] 15 NWLR (Pt 1429) 93;  Odom & Ors Vs PDP & Ors [2015] 24351.

Thus, in the case of Iroagbara Vs Ufomadu [2009] 11 NWLR (Pt 1153) 587, Aderemi, JSC (as he then was) said:

“In civil case, the like of the one under consideration, on the burden of proof on the pleadings, the rule is that the burden of proof rests on the party (whether Plaintiff or Defendant), who substantially asserts the affirmative of the issue. When it is said the onus of proof shifts from Plaintiff to Defendant and vice versa from time to time as the case progresses, it means no more than that the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on either side.”

  1. The Claimant has established that he was not afforded fair trial but inParagraph 13 of its Statement of Defenceand Paragraph 10 of the Witness Deposition on Oath, the Defendant had contended that the Claimant’s trial was free and fair as same was conducted in line with the Rules and Regulations and administrative requirements of the School. By reason of this defence, I am of the firm view that the evidential burden shifted on the Defendant to prove that the trial was conducted in line with the Rules and Regulations and administrative requirements. However, the said School’s Rules and Regulations and administrative requirements were not placed before the Court. In other words, the Defendant failed to discharge the onus placed on it. And I so hold.

I am of the view that a party, as the Claimant in the instant case, who will be affected by the result of a decision must be given an opportunity of being heard. It is essential for a fair trial that the parties are given equal treatment, opportunity and consideration in the conduct of their cases, but this was not done in the present case. Fair hearing does not contemplate a standard of justice which is biased in favour of one party and the prejudice of the other. The hearing must be fair and in accordance with the twin pillars of justice namely: audi alteram partem and nemo judex in causa sua.

  1. Based on the facts as stated in Exhibit D4, the Claimant had established that his right to fair trial was violated by the summary trial conducted by the Commandant for not affording him with the opportunity of calling witnesses or cross – examining the witnesses that were called by the School to prove the alleged offence.

Therefore, I am in agreement with the learned counsel to the Claimant, that the refusal to give the Claimant the opportunity to call witnesses to support his defence obviously amounted to deprivation of the right of the Claimant to obtain substantial justice, especially bearing in mind that the Claimant was a minor at the time of the summary trial was conducted. And I so hold.

Having held that the Claimant’s right to fair hearing was breached, the decision of Brigadier General M. M. Bunza dismissing the Claimant from the School was unconstitutional, unlawful, null and void. I so hold.

  1. Perhaps, it is apt to further consider and determine the Claimant’s contention that the dismissal by Brigadier General M.M. Bunza wasultra viresand in contravention of the provisions of Section 274 (1) and (2) of the AFA (supra).

The provisions of Section 274 (1) and (2) of the AFA in contemplation provide that:

Section 274

“(1)    Subject to subsections (2) and (3) of this section, cadets, recruits and boys shall be subject to this Act.

(2)      For the purposes of punishment under section 119 of this Act, cadets, recruits and boys shall be treated as soldiers, ratings, and aircraftmen. Provided that if the accused is a boy, any one or more of the following punishments may be awarded, that is-

(a)      a fine of a sum not exceeding the equivalent of twenty – eight days’ pay;

(b)      confinement to barracks for a period beginning with the day of the sentence and not exceeding seven days;

(c)       extra guards or piquets not exceeding seven in number;

(d)       admonition;

(e)      stoppages, where the offences has occasioned any expense, loss or damage.

(3)      Nothing in this Act shall be construed to invalidate any rule or regulation made by the President for the purpose of administration of cadets, recruits and boys.”

  1. I have taken a cursory look atExhibit D3Athat is, the charge sheet by which the Claimant was charged with the offence of attempt to commit offence. The relevant portion of the exhibit reads:

“The Statement of offence: ATTEMPTS TO COMMIT OFFENCES

Punishable under Section 95 of the Armed Forces Act Cap A20 of 2004 as amended.

Section 95 of the AFA provides:

“A person subject to service law under this Act who attempts to commit an offence under any section of this Part of this Act is liable on conviction by a court martial, to the like punishment as for that offence, so however that if the offence is one punishable by death he shall not be liable to any greater punishment than imprisonment for life.”

The Claimant was found guilty of attempt to commit the offence of sodomy.

The offence of sodomy is under Section 81 of AFA (supra). By Section 81 (3) AFA (supra), a person guilty of an offence of sodomy is liable , on conviction by a court martial, to imprisonment for a term not exceeding seven years or any less provided by this Act. (Underlining for emphasis)

  1. Now, the main function of a judge it has consistently been said is to declare what the law is and not what it is supposed to be. The Judge in the discharge of his primary duty is to give the provisions of the Constitution or Statutes, where the words are unambiguous, literal, natural and ordinary grammatical meanings. That Judge in order to do justice in the exercise of his interpretative jurisdiction must find out the intention of the legislature with regards to the relevant provisions of the Constitution or statute that call for interpretation, demands nothing extraordinary. This is because the intention to be sought is as expressed in the words used in couching any of the provisions in question. See the case ofAction Congress & Anor Vs INEC[2007] All FWLR (Pt. 378) 1012; Attorney-General of Lagos State Vs Eko Hotels Ltd & Anor [2006] All FWLR (Pt 342) 1398 
  2. Guided by the principles of interpretation enunciated in the cases cited above, I hold the firm view that the mandatory punishment prescribed for attempt to commit the offence of sodomy is imprisonment for a term not exceeding seven years or any less punishment provided by the Act.

It is in my view further that from the precise, clear and unambiguous wording of the provisions of Section 81 (3) AFA (supra) that a person who is guilty of the offence of sodomy may be awarded any less punishment as provided by the Act.

Furthermore and as correctly submitted by the learned counsel to the Claimant, if the accused is a boy as the Claimant in the instant case, the punishments as listed in paragraphs (a) – (e) of subsection 2 of Section 274 (2) may be prescribed. I am of the view that the punishment for the offence of attempt to commit sodomy is either imprisonment not exceeding seven years or any of the lesser punishment as prescribed under Section 274 (2) since the accused, the Claimant is a Boy. In other words, the dismissal awarded by Brigadier General M. M. Bunza to the Claimant was ultra vires and in contravention of the provisions of the Armed Forces Act (supra). And I so hold.

In the light of the foregoing, the issues are hereby resolved against the Defendant.

  1. It is trite and settled law that once dismissal or termination is declared null and void as in the instant case, there is nothing legally standing on the way of such a successful litigant to be restored to his status quo ante bellum. See:Ekperokun Vs University of Lagos[1986] 4 NWLR (Pt 34) 162; Governor of Kwara State Vs Ojibara [2006] 18 NWLR (Pt 1012) 645.

The Claimant is therefore entitled to a consequential relief of reinstatement and the payment of all his entitlements from the date he was unlawfully dismissed. I so hold.

  1. In totality, it is hereby declared that the letter with the caption “Discipline Nigerian Military School Boy NMS/12/7238 B/CPL Sadiq A. Mohammed” dated 31/03/2017 signed by one Brigadier M.M. Bunza (Commandant) is unconstitutional, illegal, unlawful, null and void and of no effect whatsoever, it is hereby accordingly set aside.

Consequently, I hereby make the following orders:

  1. The Claimant shall be reinstated forthwith to the status quo ante before he was dismissed on 31/03/2017.
  2. The Defendant shall within thirty (30) days pay to the Claimant all his accrued entitlements and other emoluments from the date of the unlawful dismissal till the date.
  3. Cost of N250,000.00 is awarded against the Defendant.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

05/12/2019

Legal representation:

  1. I. Omachi Esq.for Claimant
  2. E. Salihu Esq.for Defendant
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