CHIEF OF NAVAL STAFF & ANOR v. OKPANACHI (2022)

CHIEF OF NAVAL STAFF & ANOR v. OKPANACHI

(2022)LCN/16265(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, April 29, 2022

CA/ABJ/CV/255/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. CHIEF OF NAVAL STAFF 2. THE NIGERIAN NAVY BOARD APPELANT(S)

And

LT. CDR. ISAAC I. OKPANACHI RESPONDENT(S)

RATIO:

THE PRINCIPLE OF THE LAW AS REGARDS THE TRANSFER OF CASES

THE MODES OF COMMENCING ACTION AND THE ORIGINATING PROCESSES

In the case of BARR ENYINNA ONUEGBU & ORS V. ATTORNEY GENERAL OF IMO STATE & ORS (2012) LPELR-191091, this Court per ABBA AJI, JCA (as he then was, now JSC) held as follows:
“Commencement of action by Originating Summons is a procedure which is used where the facts are not in dispute or there is no likelihood of their being in dispute. Therefore Originating Summons is not for matters of such controversy that the justice of the case would demand the settling of pleadings. The main advantage of resort to use of Originating Summons in appropriate cases is its simplicity resulting from the elimination of pleadings and as such is not supposed to be used by parties in hostile action. In other words, Originating Summons is only applicable in circumstance where there is no dispute on question of fact or likelihood of such dispute.”
In the instant case, the questions or fact for determination are documents or exhibits mostly emanating from the Appellant herself. And that is why the facts in both the Affidavit in support and Counter-Affidavit appear not to be in dispute or to raise controversy or hostility.
I therefore hold the view that the Respondent’s action commenced by Originating Summons is most appropriate in the circumstance, and I so hold. DANLAMI ZAMA SENCHI, J.C.A.

HOW TO TERMINATE A CONTRACT OF SERVICE WITH STATUTORY FLAVOUR

In the case of COMPTROLLER GENERAL OF CUSTOMS & ORS V. COMPTROLLER ABDULLAHI (2017) LPELR-42081, the Supreme Court held as follows:
“The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; OLATUNBOSUN V. N.I.S.E.R. COUNCIL (1988)3 NWLR (PT. 80) 25, LONGE V. FBN (2010) LPELR-1793 (SC). Chapter 2 Section 8 Paragraph 020810 (I) of the Public Service Rules PROVIDES: “The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.”
See also the case of OBETH V. OKPE (1996)9 NWLR (PT. 473) 401 AT 434 (CA), CBN & ANOR V. MRS AGNES M. IGWILLO (2007) LPELR-835 (SC) and J.S.C., CROSS RIVER STATE & ANOR V. DR (MRS) ASARI YOUNG (2013) LPELR-20592 (SC). DANLAMI ZAMA SENCHI, J.C.A.

THE PRINCIPLE OF LAW ON THE MISCONDUCT IN THE DISCHARGE OF HIS DUTIES AS A COMMISSIONED OFFICER

In other words, there is abundant evidence before the learned trial Court to order the reinstatement and promotion of the Respondent to his anticipated rank without his losing seniority because the Respondent was not found to have committed any misconduct, neither was he, from the Records of Appeal, indicted of any misconduct in the discharge of his duties as a commissioned officer. Thus, based on the evidence on Record, the learned trial Court held as follows:
“The Defendants are hereby ordered to reinstate the Applicant in the Nigerian Navy; promote him as without his losing any seniority as directed by the Ministry of Defence, and then send him to a similar course in another institution (as also directed) by the Higher Authority. The Defendants are equally ordered to pay the Applicant his outstanding entitlements and benefits.”
I entirely agree with the finding of the learned trial Judge of the lower Court. DANLAMI ZAMA SENCHI, J.C.A.

THE DUTIES OF A COUNSEL TO THE COURT AND TO HIS CLIENT

In the case of AKINDIPE V. THE STATE (2012)6 SCNJ (PT. 1) 278 AT 295-296, the Supreme Court held:
“Above all, though learned Counsel has a right and indeed a duty to present his client’s case to the best of his ability as Counsel, he has to do so within the bounds of professional ethics. The duty he owes his client is subject to a higher duty he owes to a higher cause – the cause of justice. It is a breach of professional ethics for Counsel to cast aspersions on the integrity and impartiality of a Judge without proper foundation and proof. Counsel should be more reticent in hiding under Briefs of Argument to launch unjustifiable attacks on any Judge, particularly when the Judge is not in a position to answer the charges leveled against him.” See also MRS APE SALISU & ORS V. ALHAJI LATEEF ODUMADE & ANOR (2010)2 SCNJ 257 AT 272; HARRISON ODIAWA V. FRN (2008) LPELR-4230 (CA).”
I must say, this kind of attack or casting of aspersion on the integrity of learned trial Judge without justification can no longer be tolerated or acceptable. DANLAMI ZAMA SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court Abuja, in Suit No. NICN/ABJ/143/2012 delivered by M. N. ESOWE J. on the 24th day of June, 2013.

The Respondent herein (as Plaintiff before the lower Court) had at first instance approached the Federal High Court Abuja on the 2nd day of March, 2011 for the determination of thirteen questions via an Originating Summons supported by a 37 paragraph Affidavit in Suit No. FHC/ABJ/CS/299/2011. (See pages 1-9 of the Record of Appeal). The Plaintiff/Respondent filed an Amended Originating Summons on the 17th day of February, 2012 (see pages 183-187 of the Record of Appeal). Pursuant to an application by Counsel to the Plaintiff/Respondent (Applicant before the Federal High Court), an order for the transfer of the suit from the Federal High Court to the National Industrial Court was given on the 23rd Day of April, 2012. The Order was filed at the lower Court on the 27th day of April, 2012. (See pages 188 – 190 of the Record of Appeal).

The Respondent sought the determination of thirteen questions in his Amended Originating Summons filed on 17th February, 2012 to wit:
(1) Whose error it was that he was ever sent for the Senior Staff Course at the Armed Forces Command and Staff College, Jaji at all having served there on 2 different occasions as staff against the College standing policy that such officers should do the course elsewhere?
(2) Whether he was the subject of investigation of the Board of Inquiry, whose report is dated the 9th of November, 2005.
(3) Whether he was ever accused of cheating at all by his Chief Instructor or any Directing Staff or whether the Director of Maritime Warfare ever set up a Board of Inquiry to investigate him.
(4) Whether the report of the Board of Inquiry that investigated Lt. Cdr D. D. Umar was not fraught with illegalities and irregularities as to render it untenable and unreliable in law.
(5) Whether Armed Forces Command and Staff College, Jaji has statutory powers to set up a review committee to review the report of a Board of Inquiry.
(6) Whether the Commandant of the Armed Forces Command and Staff College has statutory powers to take over the case of discipline from the Department of Maritime Warfare.

(7) Whether the College complied with its own Standing Operating Procedure 509(28) steps 1-6 in the purported investigation of the plaintiff.
(8) Whether the decision of the Commandant of the College to withdraw the Plaintiff from the course was based on the findings of a Board of Inquiry set up to investigate him as required by the College’s Standing Operating Procedure and the provisions of the Armed Forces Act, 2004.
(9) Whether it is a crime for the answer script of a student to come close to the suggested Solution “green”.
(10) Whether his retirement on the ground of Run-Out-Date was not caused by failure of Chief of Naval Chief and the Nigerian Navy Board to promote and nominate him for Senior Staff course as appropriate.
(11) Whether the Chief of Naval in a democratic dispensation is at liberty to disobey the directive of the Ministry of Defence based on a sound legal advice shown to him.
(12) Whether this Honourable Court should not declare the retirement of the Plaintiff unlawful, unconstitutional and therefore null and void in the circumstances.
(13) Whether this Honourable Court should not order the Defendant to reinstate the Plaintiff to the Navy, promote him as recommended by the Director of Legal Services, Ministry of Defence and send him for a similar course in another institution.
(See pages 183-185 of the Record of Appeal)

And upon the determination of the above questions in favour of the Respondent (Plaintiff), he seeks the following reliefs:
(1) A declaration that it is the error of the Chief of Naval Staff that the Plaintiff was ever sent to the Armed Forces Command and Staff College, Jaji instead of another College.
(2) A declaration that the Plaintiff was not the subject of the investigation of the Board of Inquiry, whose report is dated 9th November, 2005.
(3) A declaration that the Plaintiff was never accused of cheating at all by his Chief Instructor or any Directing Staff and the Director of Maritime Warfare never set up a Board of Inquiry to investigate him.
(4) A declaration that the report of the Board of Inquiry that investigated Lt. Crd. D. D. Umar was fraught with illegalities and irregularities rendering it untenable in law.
(5) A declaration that Armed Forces Command and Staff College has no statutory power to set up a review committee to review the report of the Board of Inquiry.
(6) A declaration that the Commandant of the Armed Forces Command and Staff College, Jaji has no statutory power to take over a case of discipline from the Department of Maritime Warfare.
(7) A declaration that the College did not comply with its own Standing Operating Procedure 509(28) Steps 1-6 in the purported investigation of the Plaintiff.
(8) A declaration that the decision of the Commandant of the College to withdraw the Plaintiff from the course did not comply with Armed Forces Act, 2004.
(9) A declaration that it is not a crime for a student’s script to come close to the suggested solution “Green” as examinations are meant to be passed by students who do well.
(10) A declaration that the Plaintiff’s retirement on that ground of Run-Out-Date was caused by the failure of the Chief of Naval Staff and the Navy Board to promote and nominate him for a Senior Staff Course in another Staff College as directed by the Ministry of Defence.
(11) A declaration that the Chief of Naval Staff is not at liberty to disobey a directive of the Ministry of Defence and that his refusal to promote and nominate the Plaintiff for a course in another College is unlawful and therefore null and void.
(12) A declaration that the retirement of the Plaintiff by the Defendants on 10th of December, 2010 is unlawful, unconstitutional and therefore null and void.
(13) An order of this Honourable Court reinstating the Plaintiff to the Nigerian Navy and directing the defendants to promote him immediately to place at par with his course mates, pay him all his salaries and allowances same as his course mates and without loss of rank or seniority.
(14) An order of this Honourable Court directing the Defendants to nominate him for a Senior Staff Course in another College to put him at par with his Course mates and without loss of rank or seniority.

In support of the Amended Originating Summons is an Affidavit of 37 paragraphs duly deposed to by Lt. Cdr. Isaac Okpanachi, the Plaintiff. Attached to the Affidavit in support of Originating Summons are exhibits marked Exhibits LC1 – LC31 respectively. (See pages 4 – 9 of the Record of Appeal).

The Defendants/Appellants filed an eight paragraph Counter-Affidavit on 16th October, 2012, deposed to by Akowe Faruna, a Litigation Officer at the Department of Legal Services, Ministry of Defence Abuja, and a Written Address in support. (See pages 209-212 of the Record of Appeal). The Respondent filed a five paragraphs Further and Better Affidavit deposed to by the Respondent himself on 6th February, 2013. (See pages 216 – 218 of the Record of Appeal).

The brief facts of the case before the lower Court as gleaned from the averments of the Plaintiff/Respondent is that the Respondent was a commissioned officer of the Nigerian Navy who was falsely accused of cheating in an examination at the Armed Forces Command and Staff College, Jaji, consequent upon which he was withdrawn from the Course. This was done without fair hearing, despite several attempts to seek redress from relevant authorities. The Respondent was subsequently retired on grounds of Run-Out-Date, having not been promoted and nominated for Senior Staff Course as appropriate. After exhausting all avenues of his service to get redress, the Plaintiff/Respondent, through his Counsel, served the Defendants/Appellants Notice to Commence Legal Action.

The lower Court, on the 24th of June, 2013, delivering its judgment, at pages 239 – 240 of the Record of Appeal held as follows:
“In the circumstances and flowing from the question set out for determination of this Court, the Court holds that:
a) There is no proof that the Applicant committed any exam malpractices, in fact he was expressly absolved of that allegation
b) The Applicant was not given any hearing at all (fair or foul) during the investigation is that it was all based on suspicion.
c) That his withdrawal from the college/course was not based on the finding of the Board of Inquiry set up to investigate him as required by the College’s Standing Operating Procedure and the provision of the Armed Forces Act 2004.
d) That the Applicant’s retirement based on grounds of Run-Out-Date was caused by the failure of the Chief of Naval Staff and the Navy Board to promote and nominate him for Senior Staff Course as directed. Therefore, the purported retirement of the Applicant is unlawful and unconstitutional, and to that extent null and void and the Court so holds.
The Defendants are hereby ordered to reinstate the Applicant in the Nigerian Navy; promote him without his losing any seniority directed by the Ministry of Defence; and then send him to a similar course in another institution (also as directed) by the higher Authority. The Defendants are equally ordered to pay the Applicant his outstanding entitlements and benefits.”

Dissatisfied with the judgment of the lower Court, the Appellants with the leave of this Court granted on 16th December, 2021 filed a Notice of Appeal dated 22nd February, 2021 and filed on 26th February, 2021. (See pages 443 – 445 of the Record of Appeal). The Notice of Appeal was amended on 15/06/2021, and deemed properly filed on 20th October, 2021. The Grounds of Appeal as contained in the Amended Notice of Appeal are hereby reproduced (but without their particulars) are as follows:
GROUND ONE:
The Honourable Judge erred in law when she took on and delivered judgment on the Originating Processes transferred to the Court from the Federal High Court Abuja when the Originating Process was incompetent consequently, lacked jurisdiction to entertain the suit.
GROUND TWO:
The Honourable Court erred and come to a wrong conclusion when it held that the Respondent’s retirement from service was not in accordance with Terms and Condition of Service for the Armed Forces 2007.
GROUND THREE:
The Court erred in law when the Honourable Judge after making an order of reinstatement of the Respondent further ordered his promotion without losing any seniority.

The Appellants filed their Brief of Argument on 4th May, 2021, which was deemed properly filed on 20th October, 2021. In the Appellant’s Brief of Argument settled by P. E. Okohue Esq., three Issues for Determination were distilled thus:
(1) Whether the lower Court was right to have taken on the suit as transferred from the Federal High Court and delivered judgment having regards to the Federal High Court/NIC Acts and the National Industrial Court rules as they affected transfer of suits or cases from Federal High Court to the National Industrial Court of Nigeria and the mode of commencement of action applicable to the National Industrial Court at the time of transfer. – Ground one.
(2) Assuming that the Court had jurisdiction to entertain the cause so transferred which is denied, whether the retirement of the Respondent was wrong having regard to the Rules and Regulation governing the Respondent services with the Nigerian Navy. This issue is anchor on ground two of the Amended Notice of Appeal.
(3) Whether the lower Court was right when it ordered the promotion of the Respondent without losing seniority against the clear pronouncement of the apex Court in this regard. This issue is the direct product of ground three of the amended Notice of Appeal.

The Respondent’s Brief of Argument which was settled by Isaac Okpanachi Esq., was filed on 14th July, 2021. Counsel to the Respondent adopted the issues formulated by the Appellant. The Appellants filed a Reply Brief on 29th July, 2021.

ARGUMENTS OF COUNSEL
APPELLANTS’ SUBMISSIONS
ISSUE ONE (1)
At paragraphs 6.01 – 6.07 of the Appellants’ Brief of Argument, learned Counsel to the Appellants submits to the effect that by virtue of the provisions of Section 22 (2) of the Federal High Court Act, 2004 and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009, the Federal High Court only has statutory powers to transfer cases for which it lacks jurisdiction to the High Court of a State or the Federal Capital Territory, and the National Industrial Court does not fall within the meaning of the phrases as contained in the provisions of the law regarding where cases can be transferred to from the Federal High Court. He submits further at paragraphs 6.08-6.14 of the Appellants’ Brief of Argument to the effect that the NIC Act also did not make any provision on how causes commenced at the Federal High Court should be transferred, hence, in the absence of relevant direction in any form in the various Acts establishing the Federal High Court and the National Industrial Court regarding transfer of cases from the NIC to the FHC, the irresistible conclusion is for such cause or matter to be struck out for lack of jurisdiction. The Appellants’ Counsel contends that the transfer made by the Federal High Court on the 23rd day of April 2012 was a nullity, as it was done without statutory power, which goes into the jurisdiction of the Court. He contends further that by the specific mention of the State High Court and the Federal Capital Territory High Court in the Act that empowered the Federal High Court, the National Industrial Court has been excluded.

At paragraphs 6.15 – 6.24 of the Appellants’ Brief of Argument, learned Counsel to the Appellant submits to the effect that the validity of an originating process is fundamental to the jurisdiction of a Court. He submits further that considering the reliefs sought by the Respondent and relevant authorities on mode of commencement of action, the Respondent ought to have commenced the action via a Writ of Summons and not an Originating Summons, hence, the Originating Summons of the Respondent was an unknown and incompetent mode of commencement of action at the National Industrial Court at the time the case was transferred. He relies on the authorities of KIDA V. OGUNMOLA (2006)13 NWLR (PT. 997) 377 AT 394, JACK V. UNI. AGRIC MAKURDI (2004) ALL FWLR (PT. 200) 1506, OSAI V. WAKWAH (2006) 135 LRCN 756 AT 775, LAGOS STATE JSC V. KATTO (2008) ALL FWLR (PT. 418) 327 AT 329; ORDER 3 RULE 1, NATIONAL INDUSTRIAL COURT RULES, 2007.

ISSUE TWO (2)
At paragraph 4.04 of the Appellant’s Brief of Argument, Counsel to the Appellant submitted that from the look of things, it appears the Court below did not quite examine and appreciate what was before it, because looking at the portion of the judgment where the trial Judge said that the procedure laid down in Chapters 12.10b; 09.02C and 3, 6 of the HTACOS Officers 2007 (Revised) were not complied with, the Judge did not quite appreciate the law or rules regulating the conducts of affairs in the Armed Forces. He submits further that if the Hon. Judge had time to read and digest proviso (e) to Chapter 9 paragraph 09.02 at page 147 of the Court’s record, the conclusion reached by the Court would have been different. At paragraphs 7.07 – 7.15 of the Appellants’ Brief of Argument, Counsel to the Appellants submits to the effect that the situation in the case of the Respondent is akin to that in the case of EX-CAPT. EKEAGWU V. THE NIGERIAN ARMY AND ANOR (2010) ALL FWLR (PT. 531) 1442, and the implication of the apex Court’s Judgment in EKEAGWU’S case is that once an officer is retired in accordance with Chapter 09.02 of the Harmonized Terms and Conditions for Service of the Nigerian Armed Forces Officers 2007 (Revised), as in the case at hand, such retirement becomes lawful and final without importing any extraneous reason(s), having it in mind that the Armed Forces of Nigeria is a disciplined statutory institution. He submits further that the retirement of the Respondent was in accordance with the procedures laid down in the said Terms and Conditions, and the letters from the Navy Board at pages 104 and 109 of the Record of Appeal satisfied the requirements of the procedure adpoted in this regard. He submits that if the Hon. Judge at the Court below had taken the usual pain required of an arbiter in a case like this i.e. to properly examine and understood (sic) the requirements, there would have been no sentiment attached to the case as done by the Court below at page 339 of the Record of Appeal. The Appellants’ Counsel submits to the effect that contrary to the trial Court’s description of the Minister of Defence as superior authority, the duties of the Minister is purely policy formation to aid the Armed Forces and no more, and the authority for the command, discipline and administration of the Nigerian Navy is vested in the Chief of Defence Staff by virtue of Section 12(1) of the Armed Forces Act, 2004, so that the Minister of Defence may be said to have no power or authority to exercise in some functions without the Chief of Defence Staff’s approval and the Minister cannot solely ask that an officer should be promoted. The Appellants Counsel submits further to the effect that by virtue of Section 178 of the Armed Forces Act which clearly specifies the channel of communication if an officer is of the opinion that he has been wronged, the Respondent as a Commissioned Officer has nothing to do with the Ministry of Defence. He urges this Court to hold that the Respondent was properly retired in accordance with the rules regulating his employment.

ISSUE THREE (3)
At paragraph 8.02 of the Appellants’ Brief of Argument, Counsel to the Appellants submits that the Court below made a pronouncement adopting the words of the Minister of Defence in his memo dated 6th day of July, 2009 to wit: “The Defendant is ordered to promote him as without his losing any seniority directed by the Ministry of Defence”, however, the Ministry of Defence is a supervisory Ministry over the Appellants through Defence Headquarters, consequently it lacked the power to make such pronouncement. He submits further to the effect that although the Minister of Defence is the chairman responsible for promotion of officers, he is not solely in charge, and he has no unilateral power to order promotion without going through the Navy Board. The Appellants’ Counsel submits at paragraphs 8.04 – 8.09 of the Appellants’ Brief of Argument to the effect that as clearly shown in Chapter 15, Paragraph 15.01 of the Harmonized Terms and Conditions of Service Officers 2007, promotion in the Armed Forces is a privilege and not a right, hence it cannot be enforced. He relies on the case of SYLVESTER C. NWOYE V. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2019)5 NWLR (PT. 1665) 199. He submits further that the order of the lower Court directing the Respondent’s promotion to the next rank or as and when due over the years cannot stand, as although the Court has powers to order reinstatement in a statutory protected employment if the proper procedure is not followed, it has no power whatsoever to order promotion as done in this case. He urges this Court to declare the promotion order in the lower Court’s judgment void.
RESPONDENT’S SUBMISSIONS
ISSUE ONE (1)
At paragraphs 4.1.1 – 4.1.3 of the Respondent’s Brief of Argument, Counsel to the Respondent submits to the effect that by virtue of the provisions of Section 24(3) of the National Industrial Court of Nigeria Act, 2006, the National Industrial Court can assume jurisdiction over cases transferred to it from State High Courts, the Federal High Court and the High Court of the Federal Capital Territory, and this provision is the foundation for the application of Order 49 Rule 5 of the Federal High Court Rules, 2009. He also cites the authority of Order 28 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rule 2007. At paragraphs 4.1.4 and 4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submits to the effect that contrary to the submission of the Appellants that the National Industrial Court is a stranger to Originating Summons, Order 3 of the National Industrial Court of Nigeria (Civil Procedure) Rule 2007 which is captioned “FORM AND COMMENCEMENT OF ACTION” does not mention the term “Writ of Summons”, but used the term “Originating Process”, which is defined under Order 1 of the Rules as “a complaint or any other Court processes by which a suit is initiated.” He submits further that these definitions are wide and liberal enough to accommodate Originating Summons which is a summons and a document which was definitely served on the Appellants to which they reacted and participated in the trial before the lower Court. At paragraphs 4.1.6 and 4.1.7 of the Respondent’s Brief of Argument, Counsel to the Respondent contends that by virtue of Order 3 Rule 3 of the NICN (Civil Procedure) Rules 2017, whenever claims are anchored principally on the interpretation of enactments, agreements or other instruments, the appropriate procedure before the Court is Originating Summons. He contends further that every fact relied on by the Respondent was document based and all the Respondent urged the lower Court was the interpretation of those documents and nothing more; and since there was nowhere in their Counter-Affidavit where the Appellants deposed that the Respondent misstated any fact or where they contradicted him even once, and the Appellants have not referred to the Affidavits of the parties to show their hostility or conflict of facts, their submissions in paragraphs 6.15 – 6.26 of their Brief of Argument are vacuous. He submits further to the effect that the cases of JACK V. UNI AGRIC MAKURDI, OSAI V. WAKWAH, LAGOS STATE JSC V. KATTO and GEOSIDE SURVEYS (NIG) LTD V. NWAGBERA cited by the Appellants are inapplicable to the instant case, on account of dissimilar facts. He urges this Court to decide Issue 1 in favour of the Respondent.

ISSUE TWO (2)
At paragraph 4.2.3 of the Respondent’s Brief of Argument, Counsel to the Respondent submits that a Counsel is within his rights to disagree with the view expressed by a trial Judge but just as Counsel to the Appellant did, to accuse a Judge of ignorance, having no time to read and digest a point or not understanding what he clearly understood, is a denigration of a Judicial Officer and this Court should not allow it.

At paragraph 4.2.9 of the Respondent’s Brief of Argument, learned Counsel submits that the Respondent was never accused of committing any offence at all to warrant following the six steps provided in the Armed Forces Command and Staff College’s Standing Operating Procedure (SOP) 509 captioned “PROCEDURE FOR HANDLING CASES OF CHEATING”. He submits further at paragraph 4.2.10 of his brief to the effect that none of the provisions of Article 09.02 of the Harmonized Terms and Conditions of Service for Nigeria Armed Forces Officers 2007, as grounds of compulsory retirement, applies to the Respondent, and he has been plainly victimized and retired without committing any offence.

At paragraphs 4.2.11 – 4.2.13 of the Respondent’s Brief of Argument, the Respondent’s Counsel submitted to the effect that the case of EKEAGWU V. NIGERIAN ARMY relied on by the Appellants is distinguishable from this present case, and the principle of stare decisis is only applicable in a situation where there is similarity between the facts of the case being considered and the case earlier decided. He relied on the case of OSAKUE V. F.C.E., ASABA (2010) 10 NWLR (PT. 1201)1 AT 36 PARA B.

Counsel urges this Court to come to the conclusion that the Respondent was not retired in accordance to the provisions of paragraph 09.02 of the HTACOS and affirm the judgment of the lower Court.

ISSUE THREE (3)
At paragraph 4.3.2 of the Respondent’s Brief of Argument, Counsel to the Respondent submits that a person appointed to a post for a fixed term by statute has a right to serve out the statutory term of his appointment; he cannot be removed from office by anyone during the period of his term, except for misconduct. He relies on the case of OBETA V. OKPE (1996)9 NWLR (PT. 473) 401 AT 434 PARA A. Counsel further cited pronouncements in the cases of SAMUEL EGBE V. GOVERNOR OF BENDEL STATE (1983) NSCC 54, GOV., EKITI STATE V. AKINYEMI (2011) 17 NWLR (PT. 1276) 373 AT 414 PARAS E-G, SHITTA-BEY V. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) NSCC 19 AT 35-36 LINES 53-14, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599 AT 684-685 and submit that in these cases, the Supreme Court and Court of Appeal reinstated the victims of arbitrary use of power to their positions without loss of seniority and all their financial loses were ordered to be paid. He submits further that the lower Court ordered what the law laid down as directed by the Minister of Defence, and there is no way to depart from the path of justice and allow the Appellants to deal with the respondent in malice and victimize him any further. In conclusion, he urges this Court to dismiss this appeal and uphold the judgment of the lower Court in its entirety.

APPELLANTS’ REPLY
On issue one, Counsel to the Appellants submits at paragraph 2.02 of the Appellants’ Reply Brief to the effect that at paragraphs 4.1.1 and 4.1.2 of the Respondent’s Brief of Argument, the Respondent’s Counsel agreed that transfer of cases from the Federal High Court to the National Industrial Court was neither provided for in the Federal High Court Act nor its Rules, consequently, the National Industrial Court’s Act and Rules should be used instead, however, what is not expressly mentioned in any act is deemed excluded, and the National Industrial Court Act is not an Act of general application. He submits further at paragraphs 2.03 – 2.07 of the Appellants’ Reply Brief to the effect that as at the time the suit was received by the National Industrial Court in 2012/2013, the Rules applicable to the Court was that of 2006, which had no provision for actions commenced by Originating Summons, and which was emphatic in its Order 3 Rule 1 that any action for determination by the Court shall be commenced by way of Complaint. Counsel submits further that some, if not all the documents referred to by the Respondents at paragraph 4.1.7 of his Brief of Argument are public documents which required certification to make them admissible, and capable of interpretation in view of Section 106 of the Evidence Act. He submits that the Respondent’s process at the lower Court was a hostile process which would have required oral testimony, hence the reason why the whole process would have been made in a Complaint, in line with the NIC Rules.

On issue two, the Appellants’ Counsel submits at paragraphs 3.1 – 3.4 of his Reply Brief to the effect that the Respondent’s Counsel seeks to pollute the mind of the Court against the Appellant by painting the Appellants in bad light. He contends that it is the duty of the Court to decide whether any Counsel has used wrong words; and there was nothing offensive or insultive in the words “quite appreciate” used by the Appellants’ Counsel, especially when the words “with respect” was used to connote due respect to the trial Judge. He urged this Court to disregard the insinuation of the Respondent’s Counsel.

Counsel to the Appellant submits further at paragraphs 3.05 and 3.06 of his Reply Brief to the effect that the matter of the Respondent’s withdrawal from the AFCSC which happened in 2005 is statute barred and cannot be revisited. He contends that it is trite law that the statutory limitation or jurisdiction of the Court need not be pleaded before it can be raised. He relies on the case of PPA V. PDP & ORS (2009) LPELR-4865. He contends at paragraphs 3.07 – that in retiring the Respondent, the Nigerian Navy Board was merely exercising the regulatory power vested on it by law. Counsel contends further that it is agreed with the Respondent that he was not retired based on paragraphs 09.01 and 09.02 of HTACOS, but he was never the less retired vide proviso (e) to Paragraph 09.01 and 09.02 of the same HATCOS 2007.

Counsel to the Appellants submits that the Appellant’ Brief of Argument has dealt adequately with issue three. He submits further that the case of SAMUEL IGBE V. GOVERNOR OF BENDEL STATE cited by the Respondent has no relevance to the case at hand, as Samuel Igbe was removed by a mere proclamation of the Governor, while the Respondent in this instant case was removed by due process of law – that is proviso (e) to Paragraph 09.01 and 09.02 of HTACOS 2007. In conclusion, he urges this Court to allow this appeal in the interest of their discipline in the force.

RESOLUTION OF ISSUES
This appeal will be determined based on the issues formulated by the Appellants’ Counsel, as the Respondent’s Counsel has also adopted the Appellants’ three Issues for Determination. I therefore adopt the three issues to determine this appeal as well.

ISSUE ONE
Whether the lower Court was right to have taken on the suit as transferred from the Federal High Court and delivered judgment having regards to the Federal High Court/NIC Acts and the National Industrial Court Rules as they affected transfer of suits or cases from Federal High Court to the National Industrial Court of Nigeria and the mode of commencement of action applicable to the National Industrial Court at the time of transfer.

The learned Counsel to the Appellants submits at paragraphs 6.03 – 6. 14 of the Appellants Brief of Argument to the effect that the case of the Respondent was first initiated at the Federal High Court Abuja and later transferred to the National Industrial Court, (the trial Court) on 23rd April, 2012 by the Order of the Federal High Court. (See pages 188 – 190 of the Record of Appeal). He submits that by Section 22 (2) of the Federal High Court Act, 2004 and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009, the Federal High Court is only empowered to transfer any cause or matter to the High Court of a State or the High Court of the Federal Capital Territory and not the National Industrial Court. That by the Rules of Interpretation of Statutes, the mere mention of the High Court of a State and High Court of the Federal Capital Territory excludes the National Industrial Court.

Now, the position of the law as regards transfer of cases from the Federal High Court and the National Industrial Court is governed or regulated by the Acts establishing both Courts. Section 22 (2) of the Federal High Court Act provides as follows:
“No cause or matter shall be struck out the Court merely on the ground that such cause or was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate high Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.”
In the same breath, Section 24 (3) of the National Industrial Court of Nigeria Act 2006 provides thus:
“Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of Court for the purposes of this subsection.”
By the combine provisions of Section 22 (2) of the Federal High Court Act and Section 24 (3) of the National Industrial Court of Nigeria Act, 2006, the action of transferring the suit to the National Industrial Act by the Federal High Court was correct in law. Further, Order 28 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2007 provides as follows:
“Where the Court has in the exercise of the powers conferred by Section 24 (2) of the Act directed that any cause or matter be transferred to the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja, the Court shall make an order under the hand of the President of the Court, Presiding Judge or, in their absence, another Judge appointed under Section 2 (4) (a) of the Act, to that effect and shall specify in the order the High Court to which the cause or matter is transferred.”
The above Rule of Court further empowers the Court of Record established under Section 6(1) (2)(3) and (5) of the 1999 Constitution (as amended) to transfer cause and matters to appropriate Court listed therein that have jurisdiction under the Constitution to determine such causes or matters. In the circumstance, I hold the view that the transfer was proper in law and I so hold.

At paragraph 6.15 – 6.26 of the Appellant’s Brief of Argument, learned Counsel submits to the effect that the transferred suit to the National Industrial Court by the Federal High Court was commenced by an Originating Summons and that the NICN has no power or jurisdiction to entertain the suit.
I disagree with the position of the learned Counsel to the Appellant. As rightly submitted by the Respondent’s learned Counsel at paragraphs 4.1.4 – 4.1.8 of his Respondent’s Brief of Argument, the mode of commencing an action before the National Industrial Court of Nigeria is provided by Order 3 Rule (3) of the NICN (Civil Procedure) Rules 2017 as follows:
“Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or Law in force in Nigeria.”
Thus, by Order 3 Rule 3 of the NICN (Civil Procedure) Rules, claims that bother on the interpretation of enactments, agreements or other instruments relating to employment, labour or industrial actions can be commenced in the National Industrial Court by Originating Summons.

The question to be asked is: “what is, or are the claims of the Respondent on his suit transferred to the NICN?” I have gone through the Record of Appeal and at pages 1-171 of the Record, that is the Originating Summons and the affidavit in support with exhibited documents, the questions raised by the Respondent in the Originating Summons, specifically found at pages 1-3 of the Record of Appeal, center on the interpretation of the documents attached as exhibits, numbered and marked as Exhibits LC1 – LC31. And these documents or exhibit pertain to the employment of the Respondent with the Appellant. And more importantly, the facts as contained in the Appellant’s Affidavit supporting the Originating Summons are not in dispute. I have perused the Counter-Affidavit of the Appellant at pages 209 – 211 of the Record of Appeal sworn to by one Akowe Faruna, a Litigation Officer in the Department of Legal Services of the Ministry of Defence. The Counter-Affidavit did not disclose or aver facts of hostilities between the parties at the trial Court. In other words, the facts as revealed in the Record of Appeal are not in dispute or likelihood of any dispute, and in such cases, the action can be commenced by Originating Summons. See DOHERTY V. DOHERTY (1968) NWLR 241 at 242, NATIONAL BANK OF NIGERIA LTD & ANOR V. LADI ALAKIJA & ANOR (1978)9- 10 SC 59 at 71, S. A. I OSSAI V. ISSAC WAKWAH & ORS (2006) LPELR 2813 (SC).
In the case of BARR ENYINNA ONUEGBU & ORS V. ATTORNEY GENERAL OF IMO STATE & ORS (2012) LPELR-191091, this Court per ABBA AJI, JCA (as he then was, now JSC) held as follows:
“Commencement of action by Originating Summons is a procedure which is used where the facts are not in dispute or there is no likelihood of their being in dispute. Therefore Originating Summons is not for matters of such controversy that the justice of the case would demand the settling of pleadings. The main advantage of resort to use of Originating Summons in appropriate cases is its simplicity resulting from the elimination of pleadings and as such is not supposed to be used by parties in hostile action. In other words, Originating Summons is only applicable in circumstance where there is no dispute on question of fact or likelihood of such dispute.”
In the instant case, the questions or fact for determination are documents or exhibits mostly emanating from the Appellant herself. And that is why the facts in both the Affidavit in support and Counter-Affidavit appear not to be in dispute or to raise controversy or hostility.
I therefore hold the view that the Respondent’s action commenced by Originating Summons is most appropriate in the circumstance, and I so hold.

ISSUE TWO (2)
Assuming that the Court had jurisdiction to entertain the cause so transferred which is denied, whether the retirement of the Respondent was wrong having regard to the Rules and Regulation governing the Respondent services with the Nigerian Navy.

In respect of issue 2 above, the learned Counsel to the Appellant submits at paragraph 7.02 – 7.17 of the Appellant’s Brief of Argument to the effect that the trial Court failed to examine, appreciate and follow the decision of this Court per GALINJE, JCA in the case of R/ADM FRANCIS AGBITI V. THE NIGERIAN NAVY, APPEAL NO. CA/L/361/2005 and the provisions of HTACOS Officers 2007 (Revised) and at pages 237 and 239 of the Record of Appeal, came to a wrong conclusion that the procedure laid down in Chapters 12.10b; 09.02c and 3, 6 of the HTACOS Officers 2007 (Revised) were not complied with or followed. The Appellant’s Counsel also relies on the case of EX-CAPT. EKEAGWU V. NA & ANOR (2010) ALL FWLR (PT. 531) 1442.

Learned Counsel to the Appellant submits that as deposed by the Appellant at paragraph 6(f) of its Counter-Affidavit, contained at page 211 of the Record of Appeal, the retirement of the Respondent was in accordance with the procedures laid down in the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers 2007 (Revised) but that the trial Court did not see merit in the contention.

The learned Counsel to the Respondent on the other hand contends at paragraphs 4.2.1 – 4.2.14 of the Respondent’s Brief of Argument to the effect that the Respondent was withdrawn from the Senior Officers’ Course on the accusation of examination malpractice. Learned Counsel then submits that the simple question the trial Court was asked to answer on this point was: “whether he (the Respondent) was the subject of investigation of the Board of Inquiry whose report is dated 9th November, 2005?” He states that the Respondent was not the subject of the inquiry, as no accusation was ever brought against him and he was never found guilty of any wrong doing. The issue or question the learned Counsel posed to the trial Court was: “why was the Respondent withdrawn from the Course on the basis of examination malpractice?” The trial Court, after reviewing or evaluating the Affidavit evidence of both parties, including documentary exhibits, held at page 266-268 of the Record of Appeal that the action of the Appellant against the Respondent was unlawful and unconstitutional, null and void; and ordered the reinstatement of the Respondent back into the Nigerian Navy, and that all his entitlements be restored and paid.

Now, I have perused in details the arguments of both learned Counsel to the respective parties on Issue 2 vis-a-vis the facts on record in this appeal. By the Affidavit evidence of the Respondent supporting the Originating Summons, the Respondent avers at paragraphs 4-34 as follows:

“4. However, I had served previously in the College and was even serving there for the second time before my nomination for the Course, therefore on the 30th of June, 2005, the Commandant of the College wrote the Naval Headquarters to point out that it was not desirable or appropriate that I and two other officers who had thus served at the College should do our Staff training there because we would have an unfair advantage over other officers. He recommended that three of us be sent for similar courses abroad. A copy of that letter is attached as Exhibit ‘LC1’.
5. On the 7th July, 2005, the Chief of Naval Staff’s office replied and gave reasons why we could not be sent abroad. One of the reasons was that because of new technology and ongoing changes in training techniques at the College, the advantage of having served in the College would be removed. A copy of that letter is attached as Exhibit LC2. The office of the Chief of Defence Staff also endorsed the Chief of Naval Staff’s reasoning in its own letter of 19th July, 2005. A copy of the same is attached as Exhibit ‘LC3’.
6. Thus we continued our training until 13th October, 2005 when we had to write an examination in Exercise PRECIS WRITING 2. After the examination, a case of cheating was brought against one Lt. Cdr DD Umar NN/1623 on 17th October 2005 by the Chief Instructor H Division. A board of inquiry was set up to investigate the said officer and Lt. Cdr I. Y. Mohammed who was implicated by Lt. Cdr Umar. During the Board’s sitting on 24th October, 2005, I was called to testify as a witness along with 10 other witnesses. In the course of investigation, my room and my computer were searched and nothing incriminating was found against me.
7. For the avoidance of doubt, no allegation of cheating was made against me by my Chief Instructor, Invigilator or Directing Staff. It transpired during the inquiry that I had also become a suspect when no Instructor brought any allegation against me.
8. The Board of Inquiry in its report found that “the extent of compromise of Ex Pw2 was limited to the 2 suspected officers only”. That is Lt. Cdr Umar and Lt. Cdr Mohammed. The Board recommended the downgrading of the scores of the two officers and that I be placed under close watch. A copy of Board of Inquiry’s Report is attached as Exhibit ‘LC4’.

9. Curiously however, in another memorandum from the Acting Deputy Director of Maritime Warfare to the Commandant, he false reported that the Board of Inquiry recommended that my scores be downgraded. A copy that false report is attached as Exhibit ‘LC5’.
10. On the 17th of November, 2005, the College set up another board to review the Board of Inquiry’s report on the case of suspected cheating by Lt. Cdr DD Umar. The review board turned in its report to the Commandant on the 1st of December, 2005 which among other things recommended that I together with the two officers implicated should be withdrawn from the course immediately and that the College should not take any further disciplinary action against us. A copy of the review board’s report is attached as Exhibit ‘LC6’. Again on the 8th of December, 2005, the Commandant himself convened another Emergency Committee to review the Review Committee’s report. The Emergency Committee affirmed the review committee’s report. The same is Exhibit ‘LC6A’ attached herewith.
11. We were indeed withdrawn from the College vide the Commandants memo of 9th December, 2005. A copy of the same is attached as Exhibit ‘LC7′. On the same day, the Acting Director of Maritime Warfare widely circulated a memo affirming the Commandant’s memo. A copy of the same is Exhibit ‘LC8′.
12. On the 12th of December, 2005, I appealed to the Commandant of the College pointing out the error and miscarriage of justice in my case because I was never caught cheating during the examination nor was I caught with anything incriminating. A copy of that letter is Exhibit 9’.
13. On the 15th of December, 2005 when I heard nothing from the Commandant, I appealed to the Chief of Naval Staff (the defendant) seeking redress for the obvious injustice done to me. A copy of the same is Exhibit ‘LC10’.
14. On the 20th of December, 2005 when I heard nothing from the Chief of Naval Staff, I appealed to the Chief of Defence Staff. A copy of my letter is Exhibit ‘LC11’ attached herewith.
15. On the 4th January, 2006, the Chief of Defence Staff directed the Commandant of the College to reinstate me pending further action. A copy of the Chief of Defence Staff’s letter is attached as Exhibit ‘LC12’.
16. On the 5th of April, 2006, the Chief of Naval Staff directed the Flag Officer commanding Naval Training Command to try me and 2 other officers contrary to the report of the Board of Inquiry and even the review committee’s recommendations. A copy if the letter is hereby attached as Exhibit ‘LC13’.
17. However, the Commandant after keeping me waiting in Jaji for two weeks flatly refused to obey the Chief of Defence Staff. I was compelled to write the Chief of Defence Staff a second time to point out the refusal of the Commandant to reinstate me to the Course. A copy of the same is attached as Exhibit ‘LC14’.
18. On the 6th March, 2006, the Chief of Defence Staff without hearing my own side of the story and recourse to this earlier letter of 4th January, 2006, approved my withdrawal from the course.
19. On the 5th of May, 2006, the Flag Officer Commanding, Naval Training Command, Apapa, Lagos Rear Adm, I. I. Ibrahim wrote the Chief of the Naval Staff pointing out the errors of procedure of the preliminary investigation report and the embarrassment the irregularities may cause to the Navy during trial. A copy of that letter is attached herewith as Exhibit ‘LC15′.
20. When nothing came of that effort, I was compelled to write to the Chief of Naval Staff again on the 24th of September, 2007 appealing to him to give another consideration to my case. A copy of that letter is attached herewith as Exhibit ‘LC16’.
21. When there was no reaction to this letter from the Chief of Naval Staff, I was compelled to write to both the Minister of Defence and the Armed Forces Council on the 3rd of November, 2007 appealing to them to redress the injustice that was done to me. Copies of these two letters are attached as Exhibits ‘LC17′ and ‘LC18’ respectively.
22. Once again, on the 8th of November, 2007, the new Flag Officer Commanding, Naval Training Command, Lagos, Rear Admiral G.S.A. Ombo wrote the Chief of Naval Staff pointing out the administrative lapse of sending me on the course despite a strong recommendation to send me abroad. He also pointed out to him three procedural lapses in processes that led to my withdrawal. He appealed to him to redress the injustice and recommended I be sent to undergo an equivalent course elsewhere. A copy of that letter is attached as Exhibit ‘LC19’.
23. Again nothing came of this effort. Rather on the 15th of May, 2008 the Chief of Naval Staff wrote the Honourable Minister of Defence that there is nothing he could do and that the matter was under the jurisdiction of the Defence Headquarter. A copy of that letter is Exhibit ‘LC20’.
24. I was compelled to write the Honourable Minister of Defence again on the 19th May, 2008 once more drawing his attention to the reason why my case should be reviewed. A copy of that letter is Exhibit ‘LC21’. Nothing came of this effort.
25. On the 6th June, 2008, a retired officer of the Navy Lt. Cdr A.C Akagwu who saw the injustice done to me and was moved, wrote to the Chief of Defence Staff pointing out many errors of procedure and law in the injustice done to me and requesting him to redress the wrong, promote me and send me on an equivalent course elsewhere. A copy of that long letter is attached herewith as Exhibit ‘LC22’.
26. On the 10th of June, 2008, Lt. Cdr Akagwu wrote a similar letter to the Honourable Minister of Defence. A copy of that his second letter is attached herewith as Exhibit ‘LC23’.
27. On the 10th of August, 2009, the Permanent Secretary Ministry of Defence directed by the HMOD, wrote the Chief of Naval Staff to prepare a memo to the Navy Board concerning my petition in line with paragraph 17 and 18 of the legal advice of the Ministry’s Director of Legal Services. These paragraphs recommended that I be promoted immediately without losing any seniority and that I be sent for an equivalent course in another College. A copy of that letter and the legal advice attached to it are Exhibit ‘LC24’ and ‘LC24A’ respectively.
28. Instead of complying with the Permanent Secretary’s directive, on the 11th March, 2010. I received a letter from the Chief of Naval Staff denying me promotion and stating that I had lost 12 months seniority. A copy of that letter is Exhibit ‘LC25’.
29. Once again I was compelled to write the Honourable Minister of Defence another appeal on the 22 of April, 2010. A copy of that letter is Exhibit ‘LC26’.
30. Nothing came of all my effort until the 10th of December, 2010 when the Chief of Naval Staff on the authority of 2nd Defendant served me with a letter of retirement from service. A copy of the same is Exhibit ‘LC27’.
31. I wrote the Hon. Minister of Defence to redress the injustice done to me again on 20th January, 2011 and for the last time. A copy of the letter is attached as Exhibits ‘LC28’.
32. On the 10th of January, 2011 my Solicitor wrote the Chief of Naval Staff and gave him notice that if I was not reinstated immediately into the Navy, I would have to seek legal redress. A copy of the same is Exhibits ‘LC29′.
33. I am only 46 years old and I have at least 12 more years of active service to render my nation and fatherland but for this injustice.
34. I have exhausted every possible avenue of seeking internal redress without success.”
(See pages 4-9 of the Record of Appeal)

The Appellant admitted paragraphs 1-27 of the Respondent’s Affidavit, while in respect of paragraphs 28, 29, 30 and 31 of the Respondent’s Affidavit, the Appellant responded at paragraph 7 of its Counter-Affidavit as follows:
7 (a) The Plaintiff petitioned the Honourable Minister of Defence and the Ministry of Defence thereafter recommended that the Plaintiff be promoted without losing any security and be re-nominated for equivalent course anywhere outside AFCSC.
(b) That Honourable Minister directed the Nigerian Navy to prepare a brief (memo) for Navy Board consideration and approval.
(c) That in line with Honourable Minister’s directive 3 officers including the Plaintiff were recommended to Senior officers promotion Board SOPB 4 – 2009.
(d) That the 3 officers failed to meet the conditions for promotion and thus they were not promoted to the next rank.
(e) That the 3 officers having failed to meet the necessary conditions for promotion by SOPB 4 of 2009 were placed on the non-promotable list affected by Run Out Date.
(f) That the retirement of the plaintiff is in accordance with the procedures laid down in the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers 2007 (Revised).
(g) That the retirement of the plaintiff was in the interest of the service.
(See pages 209 – 211 of the Record of Appeal)

I have also perused the documents attached to the supporting Affidavit marked LC1 – LC31 respectively.

Having perused the Affidavit evidence of both parties on record as filed before the trial Court, I closely examined the documents marked as Exhibits, and having also gone through the facts of the cases of R/ADM FRANCIS AGBITI V. THE NIGERIAN NAVY (SUPRA) and EX-CAPTAIN CHARLES C. EKEAGWU V. THE NIGERIAN ARMY & ANOR (SUPRA), I must endorse the finding of this Court in R/ADM FRANCIS’ case that every occupational group validly recognized by a statute of the land is governed by a set of laws, rules and regulations, hence, members of that occupational group and indeed the establishment must follow and obey their laws, Rules and Regulations strictly. There is also no doubt that the Armed Forces Act that regulates the activities or duties of the Armed Forces, including the Appellants, must strictly adhere to its laws, regulations and procedures in the conduct and discharge of its obligations. Thus, by their nature and discipline, the Armed Forces have no room for indiscipline; and to avoid breeding indiscipline is for both the members, i.e., employee and master, to respect the laws establishing the occupational group. And lack of adherence to the law, Rules and Regulations will certainly erode the discipline inherent in the Armed Forces. Thus, by the facts on record in this case, as revealed by the Affidavit evidence of the Respondent and admitted by the Appellants, the Respondent, as a member of the Armed Forces, has exhibited qualities of a disciplined member of the Armed Forces by pursuing his grievances in accordance with the Act establishing the Appellant and the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers, 2007 (Revised).

Further, the facts of the case of EX-CAPT CHARLES EKEAGWU V. THE NIGERIAN ARMY & ANOR (SUPRA) are not the same with the facts of the instant Appeal. The submission of learned Counsel to the Appellants at paragraphs 7.08 and 7.09 of the Appellants’ Brief of Argument is incorrect and where the Appellants breached, contravened or failed to observe the principles of fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (As Amended) in the application of its laws, i.e., the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers, 2007 (Revised), in carrying out its disciplinary measures or actions against members, inclusive of the Respondent, the Court has a duty to intervene. And a careful perusal of the documents attached to the Affidavit in support of the Originating Summons, all the appropriate authorities in the Military Command of the Appellants and the supervising minister, the Honourable Minister of Defence, had intervened and ordered the reinstatement of the Respondent but all the directives fell on the deaf ears of the Appellants. The Board of Inquiry set up to investigate the examination malpractice exonerated the Respondent and indeed the Respondent was not even indicted but called to testify as a Witness.

The Armed Forces Command and Staff College’s Standing Operating Procedure (SOP) 509 captioned “PROCEDURE FOR HANDLING CASES OF CHEATING” provides:
“28. Like in all institutions of learning, the Armed Forces Command and Staff College is sometimes inundated with the incidents of exam malpractice (cheating) by and among students. Consequently, involvement in any case of cheating shall be severely punished. Any personnel who aids a student(s) to cheat (if proven) shall be disciplined accordingly.
a. Step 1. DS shall complete the grading of the student’s solution and write a report to the CI indicating suspicion.
b. Step 2. The CI shall set up a committee of 2 independent DS to reassess the students’ solution and ascertain the allegation.
c. Step 3. If the CI still has doubts, he shall make the student to rewrite the exercise under observation.
d. Step 4. If allegation is confirmed, the CI shall report the case to the Departmental Director.
e. Step 5. The Director shall set up board of Inquiry, to include DS from other departments.
f. Step 6. The findings of the board shall form the basis for action by the College Committee/withdrawal Committee.”
(See page 114 – 115 of the Record of Appeal).

The Respondent, as I said earlier, was never accused of committing any offence of examination malpractice and therefore the procedure does not apply to him because he was not standing trial for any offence involving examination malpractice.

Further, Article 09.02 of the Harmonized Terms and Conditions of Service for Nigerian Armed Forces Officers 2007 (Revised) provides:
“Compulsory retirement or resignation may be effected for the following reason(s):
a. An officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds.
b. An officer who on account of ill health is reported by an approved medical board as being unfit for military service in accordance with the “Medical Standard” in the respective Services shall be retired.”
c. An officer may be compulsorily retired from service by the Army Council/Navy Board/Air Force Council for any of the following specific reasons:
(1) Medical unfitness, disabilities.
(2) Failed Promotion Examination or CAPEX 3 times.
(3) Failed Promotion Board 3 times.
(4) On disciplinary grounds i.e. serious offence(s)
(5) Undeployability arising from restructuring and/or lack of enlistment
(6) On attaining the age ceiling of his rank.
(7) Incompetence, indolence, etc.
(8) Disloyalty to constituted authority on written order both in peace time and in operations.
(9) Failure at Staff Course, Post-Staff College Course and their equivalent.
d. An officer compulsorily retired not on disciplinary ground shall be entitled to 6 months salary in lieu of notice.
e. Notwithstanding the provisions of paragraph 09.1 and 09.2, an officer shall if approved by the army Council, Navy Board or Air Force Council concern, be retired, be called upon to retire, resign or relinquish his commission. An officer called upon to retire, resign or relinquish his commission shall if he so desires, appeal to Mr. President, C-in-C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer retired had collected the 3 months salary paid him/her in lieu of notice.”
(See pages 146-147 of the Record of Appeal).

It is beyond arguments that the grounds envisaged by the above provision does not apply to the Respondent, neither was the Respondent’s retirement based on any of the said grounds. The finding and holding of the learned trial Court at page 266 of the Record of Appeal is thus:
“The kernel of the Applicants case is that the Hon. Minister’s directive was not that he be sent to the SOPB but the Navy Board of which he is a Chairman, pursuant to S13 of the Armed Forces Act, Cap A20 LFN 2004. Thus the Defendants’ argument that he was examined by the SOPB and scored below expectation does not sound convincing! In fact, it shows traces of malice against the Appellant. Here is a man who was sent to a college he had attended twice; who took an exam and whose answer script was alleged to have been like the “green”, which ordinarily should mean that he performed very well but was suspected of exam malpractices. He was declared innocent but still withdrawn from the course, until the directive from the Ministry of Defence mentioned above came and was duly flouted. He was sent to the SOPB without the advantage of the Course that will avail him the success required.
To the Court, his withdrawal from the college was baseless. It was based on the suspicion of exam malpractice, because he was suspected and cleared of the allegation. Suspicion has never grounded a conviction. His subsequent presentation before the Board and his placement on non-pensionable list; and his resultant Retirement on grounds of Run-Out-Date is wrong and in very bad faith indeed, and the Court so holds.”

The foregoing finding of the learned trial Court cannot be faulted, hence, this Court cannot disturb such finding.

ISSUE THREE
“Whether the lower Court was right when it ordered the promotion of the Respondent without losing seniority against the clear pronouncement of the apex Court in this regard.”

The Appellant’s Counsel refers to the judgment of the learned trial Judge at page 240 of the Record of Appeal wherein Counsel contends that the learned trial Judge adopted the words of the Minister of Defence in his memo dated the 6th day of July, 2009 as follows:
“The Defendants are ordered to promote him as without losing any seniority directed by the Ministry of Defence.”

Learned Counsel to the Appellants submits that the Ministry of Defence is the supervisory Ministry over the Appellants through the Defence Headquarters but it lacks power to make such pronouncement on the promotion of the Respondent. He submits at paragraphs 8.03-8.09 of the Appellant’s Brief of Argument to the effect that promotion in the Armed Forces is a privilege as provided in Chapter 15 paragraph 15.01 of the Harmonized Terms and Conditions of Service Officers 2007 (Revised) and he relied on the case of SYLVESTER C. NWOYE V. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2019)5 NWLR (PT. 1665) 199.

Now issue three for determination is a direct complaint arising from Ground Three (3) of the Amended Notice of Appeal in that the learned trial Court erred in law when after making an order of reinstatement of the Respondent, further ordered his promotion without losing any seniority.

The employment contract between the Appellants and the Respondent is governed by the Harmonized Terms and Conditions of Service Officers 2007 (Revised). And Article 09.02 of the said Terms and Conditions of Service provides as follows:
“Compulsory retirement or resignation may be effected for the following reason(s):
a. An officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds.
b. An officer who on account of ill health is reported by an approved medical board as being unfit for military service in accordance with the “Medical Standard” in the respective Services shall be retired.”
c. An officer may be compulsorily retired from service by the Army Council/Navy Board/Air Force Council for any of the following specific reasons:
(1) Medical unfitness, disabilities.
(2) Failed Promotion Examination or CAPEX 3 times.
(3) Failed Promotion Board 3 times.
(4) On disciplinary grounds i.e. serious offence(s)
(5) Undeployability arising from restructuring and/or lack of enlistment
(6) On attaining the age ceiling of his rank.
(7) Incompetence, indolence, etc.
(8) Disloyalty to constituted authority on written order both in peace time and in operations.
(9) Failure at Staff Course, Post-Staff College Course and their equivalent.
d. An officer compulsorily retired not on disciplinary ground shall be entitled to 6 months salary in lieu of notice.
e. Notwithstanding the provisions of paragraph 09.1 and 09.2, an officer shall if approved by the army Council, Navy Board or Air Force Council concern, be retired, be called upon to retire, resign or relinquish his commission. An officer called upon to retire, resign or relinquish his commission shall if he so desires, appeal to Mr. President, C-in-C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer retired had collected the 3 months salary paid him/her in lieu of notice.”
(See pages 146-147 of the Record of Appeal)

The question that arises is whether the Respondent was retired in accordance with the Harmonized Terms and Conditions of Services Officers, 2007 (Revised)?

The Respondent’s Counsel’s answers to this question at paragraph 4.2.14 and 4.2.15 of the Respondent’s Brief of Argument is to the effect that the Respondent was not retired in accordance with paragraph 09.02 of the HTACOS. The Appellants appear to have no quarrel with the order of the learned trial Court reinstating the Respondent because of the Respondent’s statutorily protected employment if the proper procedure is not followed. However, the quarrel of the Appellants is that the learned trial Court has no power whatsoever to order promotion as and when due.

Now, by the Affidavit evidence of the Respondent and the facts of this case, the Respondent’s employment with the Appellants is for a fixed term or fixed years of service. In other words, as rightly submitted by the Appellants’ Counsel, the employment of the Respondent is statutorily protected and such employment can only be brought to an abrupt end in accordance with the Harmonized Terms and Conditions of Services Officers, 2007 (Revised). It is on record that the Respondent is a Commissioned Officer of the Appellants and therefore his employment cannot be brought to an end without following paragraph 09.02 of the HTACOS. In the case of COMPTROLLER GENERAL OF CUSTOMS & ORS V. COMPTROLLER ABDULLAHI (2017) LPELR-42081, the Supreme Court held as follows:
“The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; OLATUNBOSUN V. N.I.S.E.R. COUNCIL (1988)3 NWLR (PT. 80) 25, LONGE V. FBN (2010) LPELR-1793 (SC). Chapter 2 Section 8 Paragraph 020810 (I) of the Public Service Rules PROVIDES: “The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.”
See also the case of OBETH V. OKPE (1996)9 NWLR (PT. 473) 401 AT 434 (CA), CBN & ANOR V. MRS AGNES M. IGWILLO (2007) LPELR-835 (SC) and J.S.C., CROSS RIVER STATE & ANOR V. DR (MRS) ASARI YOUNG (2013) LPELR-20592 (SC).

I have also seen the provisions of Chapter 15, paragraph 15.01 of the HTACOS, 2007 (Revised) which states:
“Promotion shall be a privilege for officers.”
I have also gone through the facts of the case of NWOYE V. FEDERAL AIRPORT AUTHORITY OF NIGERIA (Supra) and the facts of the instant Appeal. In the case of NWOYE V. FAAN (Supra), the learned Counsel to the Appellants only quoted a part of the decision of the Supreme Court without stating in full how the Apex Court arrived at that decision. The Apex Court in upholding the position of both the lower and trial Courts in refusing to grant Relief two (2) of the Appellant held that:
“To my understanding, in this relief, the Plaintiff was simply asking the trial Court to, in a disguised way, promote him to a position contemporaries are holding and or make him to benefit from the salaries and other entitlements of his supposed contemporaries then holding the rank of Assistant Electrical Superintendents. It is elementary to say that a trial Court is not the Plaintiff’s employer. Since the employers i.e., the Defendant/Respondent had never so promoted him or granted that relief more especially because no evidence was led before it to show that he really deserved or is entitled to that anticipated promotion or rank. Perhaps, it is sequel to that, that the trial Court in refusing to grant that relief held below – “this relief is like making a “tall order”. Promotion is a privilege granted an employee.”
(Underlining mine for emphasis)
In the instant case, the facts on record are not in all fours with the facts in NWOYE V. FAAN’s case. Records show that all relevant authorities that the Appellants are answerable to are directed as follows:
(1) The Chief of Defence Staff’s letter ordering the reinstatement of the Respondent which the staff college disobeyed. (See page 50 of the Record of Appeal)
(2) The Chief of Naval Staff’s letter that the Respondent or other officers be tried in accordance with the Armed Forces Act Cap A20 LFN was not followed. (See page 51 of the Record of Appeal).
(3) The letter of the Field Officer Commanding Naval Training Command recommending that the Respondent should be sent to an equivalent training in another institution was jettisoned. (See pages 66-67 of the Record of Appeal)
(4) Recommendation (Legal Opinion) of the Federal Ministry of Defence recommending immediate promotion of the Respondent and his renomination for an equivalent course outside AFCSC Jaji. (See pages 96-103 of the Record of Appeal).
(5) The letter of the Permanent Secretary, Federal Ministry of Defence conveying the directive of the Minister of Defence to the Chief of Naval Staff to raise a memo in line with the recommendation of the Legal Services Department of the Federal Ministry of Defence (See page 162 of the Record of Appeal).
(6) The directive of the Minister of Defence pursuant to the Legal Advice of the Federal Ministry of Defence that the Respondent be reinstated and promoted without his losing his seniority. (See page 103 of the Record of Appeal)
In other words, there is abundant evidence before the learned trial Court to order the reinstatement and promotion of the Respondent to his anticipated rank without his losing seniority because the Respondent was not found to have committed any misconduct, neither was he, from the Records of Appeal, indicted of any misconduct in the discharge of his duties as a commissioned officer. Thus, based on the evidence on Record, the learned trial Court held as follows:
“The Defendants are hereby ordered to reinstate the Applicant in the Nigerian Navy; promote him as without his losing any seniority as directed by the Ministry of Defence, and then send him to a similar course in another institution (as also directed) by the Higher Authority. The Defendants are equally ordered to pay the Applicant his outstanding entitlements and benefits.”
I entirely agree with the finding of the learned trial Judge of the lower Court.

Before I conclude, I have, with pain, seen the Appellants’ Brief of Argument, how the Counsel to the Appellants attacked the integrity of the learned trial Judge. The uncouth language used by Counsel in ventilating his grievances against the decision or findings of the learned trial Judge is most intemperate and most uncharitable on Judicial Officers generally, and the learned trial Judge in particular, who, under harsh conditions, still discharged his statutory responsibilities in accordance with the oath of his office. In the case of AKINDIPE V. THE STATE (2012)6 SCNJ (PT. 1) 278 AT 295-296, the Supreme Court held:
“Above all, though learned Counsel has a right and indeed a duty to present his client’s case to the best of his ability as Counsel, he has to do so within the bounds of professional ethics. The duty he owes his client is subject to a higher duty he owes to a higher cause – the cause of justice. It is a breach of professional ethics for Counsel to cast aspersions on the integrity and impartiality of a Judge without proper foundation and proof. Counsel should be more reticent in hiding under Briefs of Argument to launch unjustifiable attacks on any Judge, particularly when the Judge is not in a position to answer the charges leveled against him.” See also MRS APE SALISU & ORS V. ALHAJI LATEEF ODUMADE & ANOR (2010)2 SCNJ 257 AT 272; HARRISON ODIAWA V. FRN (2008) LPELR-4230 (CA).”
I must say, this kind of attack or casting of aspersion on the integrity of learned trial Judge without justification can no longer be tolerated or acceptable.

In conclusion, having resolved the three issues against the Appellants and in favour of the Respondent, this appeal lacks merit and it is accordingly dismissed.

Accordingly, the judgment of the National Industrial Court of Nigeria in Suit No. NICN/ABJ/143/2012 delivered on the 24th day of June, 2013 by M. N. ESOWE, J. is hereby affirmed.

No award as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment of my learned brother, Danlami Zama Senchi, JCA, just delivered.

My learned brother has adequately resolved creditably all the issues raised in this appeal. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserve to be dismissed. Accordingly, the appeal is dismissed by me.
I abide by the consequential orders.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained.

I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the National Industrial Court of Nigeria in Suit No. NICN/ABJ/143/2012 delivered on the 24th day of June, 2013 by M. N. Esowe, J.
I make no order as to costs.

Appearances:

P. E. Okohue, with him, Esq, with Elizabeth Achimugu, Esq, For Appellant(s)

I. G. Abah, Esq, with him, O. O. Ifijeh, For Respondent(s)