IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP,
Hon. Justice B.A. Adejumo, OFR……………….…………………………………President
Date: 14TH DECEMBER, 2017
SUIT NO. NICN/ABJ/102/2011
BETWEEN:
GROUP CAPTAIN REGINAL OSENE
——————————-CLAIMANT
AND
- THE CHIEF OF AIR STAFF
- THE NIGERIA AIR FORCE
- AIR MARSHAL PAUL DIKE
————————————-DEFENDANTS
REPRESENTATION:
FESTUS OKPE, ESQ., FOR THE CLAIMANT
IBRAHIM ETSU, ESQ., FOR THE DEFENDANTS
JUDGMENT
This matter was transferred from the Federal High Court pursuant to the order of that court on 28th November, 2011 made pursuant to Section 22 (2) of the Federal High Court Act, Order 49 Rule 5 of the Federal High Court Rules, 2009 and Section 24 of the National Industrial Court Act, 2006. On 27th February, 2012 this Court granted the Claimant’s application to amend his statement of claim by deeming the amended statement of Claim attached to the Motion for amendment as being properly filed and served. The statement of claim is accompanied with, among other documents, the Claimant’s written Statement on oath.
The claimant sought the following reliefs:
- A declaration that the plaintiff is entitled to have been promoted to the rank of Air commodore with effect from 1st July 2004 and the rank of air vice marshal with effect from 1st July 2007 respectively.
- An order compelling the defendants to present the Plaintiff to the Air Force Council for promotion to the rank of Air commodore with effect from 1st July 2004 and the rank of air vice marshal with effect from 1st July 2007 respectively.
- An order compelling the 2nd defendant to pay the plaintiff all arrears due him as per all the promotions from 1st July 2004 and July 1st 2007 respectively.
- An order compelling the 3rd defendant to write a letter of apology to the plaintiff for threatening to and actually impeding the promotion of the plaintiff.
- An order restraining the defendants from posting or retiring the plaintiff for seeking to redress the various injustices perpetrated against him.
- General damages of Two Hundred Million Naira (N200, 000, 000.00) jointly and severally against the defendants.
In response to the Claimant’s amended statement of claim, the defendants filed their amended statement of defence dated and filed on 12th April, 2012. The claimant’s reply to the amended statement of defence of the defendants was dated and filed on 24/4/ 2014. Issues were thereafter joined and the matter proceeded to trial.
The gravamen of the plaintiff’s case is that he was not promoted to the rank of Air Commodore and Air Vice-Marshal respectively and was later retired from service during the pendency of this suit. This prompted him to file the instant suit in this Honourable Court to seek redress.
The claimant called 9 witnesses namely:
- Group Captain Nehemiah Shaks Kanwai
- Group Captain Reginald Osene (claimant)
- David Davou Makvwi
- Air Vice Marshal S.J. Usoro (Rtd.)
- Air Commodore Micheal Nse Ekwerre (Rtd)
- Brigadier General Ibim Morrison
- Air Vice Marshall Spiff (Rtd.)
- Air commodore MOD Idonibo
- Group Captain Samuel Babalola
The following Documents were tendered by and for the claimant:
- Nigeria Defence Academy Certificate of Education- EXHIBIT B.
- Royal Air force Officer Cadet Training Unit Certificate dated 11/1/1979- EXHIBIT C
- Secretariat Officers Course Certificate dated 18/5/1979- Exhibit D
- Federal Government Official Gazette 6/12/179- Exhibit E-E4
- Defence Intelligence Agency- Defence Advisers Course Certificate-DIA/01/006- EXHIBIT F
- Presidency Certificate of Participation on Pension Matters- Exhibit J
- National War College Course 13- Exhibit H.
- Terms and Conditions of Service (Officers) dated 1/6/1983- Exhibit I
- National War College Course 13 Cumulative Results- Exhibit J-J3
- Nigeria Air Force Officers Seniority list 1999- Exhibit K. K-143
- Nigeria Air Force Officers Seniority list 2000- Exhibit L.L-71
- Nigeria Air Force Officers Seniority list 2001- Exhibit M-M146
- Nigeria Air Force Officers Seniority list 2005- Exhibit N-N157
- Terms and Conditions of service Nigeria Armed Force Officers May, 2006-Exhibit O-O49
- Posting of Officers Dated 15/12/2006-Exhibit P
- Promotion of Senior Officers Signal dated 16/12/2005- Exhibit Q
- Statement of Objectives Year 2007 Nigeria Air Force- Exhibit R-R14
- Harmonized Terms and Conditions of service for Nigeria Armed Forces Officers 2007 (Revised)- Exhibit S-S73
- NAF Form Dated 29/11/2007 Promotion air Rank- Exhibit T-T1
- Admin Specialist Officers Promotion Exams Manual- Exhibit U-U142
- Confidential Report 2001-2002- Exhibit V-V3
- Confidential Report 2002-2003- Exhibit W-W3
- Posting of Officers Signal March 2008- Exhibit X-X2
- Voluntary Retirement Officers Signal Belated 061655 A JAN 2009- Exhibit Y-Y2
- Officers Retirement Signal Belated 071130 A JAN 2009- Exhibit Z-Z1
- NAF Establishment (1998-2005)- Exhibit AA-AA15
- Documents on letter head of University of Ibadan dated 16/10/2006 and annexures – Exhibit BB-BB13
- University of Ibadan, Post Graduate School dated 18/8/2006- Exhibit CC
- Notification of Higher degree Result dated 19/10/ 2009- Exhibit DD
- Certificate of Admittance issued to Reginald Osene dated 18/8/2006- Exhibit EE
- Command and Staff College Certificate to Squadron Leader R.A. Osene – NAF/1050- Exhibit FF
- Ruling of the Federal High Court on 2/6/2008- Exhibit GG-GG6
- Core Values and Traditions of the Nigerian Air Force 1st Edition- Exhibit HH-HH132
- Armed Forces Act (as amended) by the 1999 Constitution- Exhibit JJ-JJ170
- Air Force senior Officers Promotion Signal for 2005- Exhibit KK-KK2
- Air Force Senior Officers Promotion Signal for 2006- Exhibit LL-LL2
- National War College Cumulative Results for Participants of Courses 12 and 13- Exhibits MM-MM27 and NN-NN9
- National War College Course 14 and 15 Cumulative Results for NAF officers- Exhibits PP-PP and QQ-QQ
- Confidential Report of Claimant 2006-2007 – Exhibit RR-RR2
- National War College Nigeria Final Course Report- Group Captain RA Osene –NAF/1050- Exhibit SS-SS3.
The claimant’s witnesses were duly cross-examined by the defendants’ counsel and the claimant closed his case.
After the close of the case for the claimant, the defendants opened their case and called one witness. The defendants’ witness, Squadron Leader Stephen Biruwa, tendered the following documents:
- Statement on Oath dated 12/4/12- Exhibit DW1-DW1G
- Nigerian Air Force Report of Officers Promotion Board 1 of 2005- Exhibit DW1- DW!-32
- Nigerian Air Force Report of Officers Promotion Board 1 of 2007- ExhibitDW1-2DW1-36
- National War College Course Summaries for Air Force Officers 12-15 – Exhibit DW1-3DW1-3C
- Harmonized Terms and conditions of Service for Nigeria Air Force Office November, 2007- Exhibit DW1 DD-DW1-DD13
- The Naval Officer Personnel Administration Vol. 2. Personnel Administration Management- Exhibit DW1.EE-DW1EE5
After the close of the defence’s case, counsel for the parties filed their respective written addresses which they adopted as their legal argument in support of their cases.
The defendants’ written address is dated 7th March, 2016 and was settled by Ibrahim Etsu, Esq., of the Legal Department, Ministry of defence, Ship House, Area 10, Garki-Abuja, while the claimant’s written address was dated and filed on 18th May, 2017. The said claimant’s written address was settled by John Ainetor, Esq., of Festus Keyamo Chambers.
Learned defence Counsel adopted the written address filed on behalf of the defendants and urged the court to dismiss the suit in its entirety while learned counsel for the Claimant, O.C. Uju- Azorji, Esq., adopted the final written address of the Claimant filed on 18/05/2017 as argument in respect of the case of the Claimant. He urged the Court to find in favour of the Claimant.
I will now summarize the arguments and submissions made by the counsel for the parties in their respective final written addresses.
The Defendants in their joint written address filed on their behalf by their Counsel distilled 2 issues for determination as follows:
- Whether given the fact that promotion shall be a privilege and not a right for officers the plaintiff is entitled for the reliefs sought.
- Whether having failed to comply with the provision of section 178 (3) of the Armed Forces Act, being a condition precedent, the claimant can invoke the exercise of court jurisdiction.
ARGUMENT OF THE ISSUES
On issue 1, i.e. whether given the fact that promotion shall be a privilege and not a right for officers the plaintiff is entitled for the reliefs sought, it was submitted by the Learned defence Counsel that the provision of Manual of Personnel Administration (EXHIBIT DW1.EE-DW1EE5) is clear to the affect that promotion of officers shall be a privilege and not a right. He referred to the provision thus:
“ Promotion shall be a privilege for officers. This is without prejudice to the conditions laid down from time to time by the Air Force Council. Seniority in the rank in which commission is granted is always specified in the notification of commission and published in the NAF Orders and Federal Government Gazette. Temporary rank is not a scheduled promotion in the NAF. However, temporary ranks may be granted to individual officer based on the exigencies of duties and service consideration”.
Learned defence counsel posited that the import of the use of the word SHALL in the above provision is that the issue of promotion of officers is a privilege. He argued that promotion in the public service is not automatic neither is it an enforceable right but is strictly a privilege dependent on certain variables outside judicial control or creation. Counsel cited the case of ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION (2006) ALL FWLR PT. 1327 P. 1338 to support his position.
In looking at the conditions or variables for promotion of officers, counsel referred to paragraphs 26, 27 and 28 of the DW1’s Statement on Oath which read thus:
Paragraph 26: that the defendants further contend that contrary to paragraphs 30-34 of the amended statement of claim the plaintiff failed his promotion examination again in 2007 and was not promoted as a result. In 2007 promotion examination for group captain to the rank of Air Commodore for regular officers, the cut off mark (pass mark) was 78.12. He was not promoted because he scored less than the pass mark. In fact the Plaintiff failed the said promotion examination and he never contested the result…….
PARAGRAPH 27: that the National War College Course examination was also part of the assessment for promotion examination. The National War College summaries for Air Force Officers Courses 12- 15 shows that the plaintiff was No.6 on the list and he Scored 64.29 (C High). The pass mark in the examination was C+. In fact the plaintiff failed the examination…….
PARAGRAPH 28: That the defendants contend that contrary to paragraph 38 of the Amended statement of Claim, the Plaintiff was not promoted to the rank Air Commodore because he was not qualified to be promoted. In fact promotion to higher rank in the Military depends on many considerations such as the number of vacant position for a particular rank, Quota system, Federal character consideration, ability to perform, loyalty to the service…..
Counsel further argued that the above position contained in the paragraphs cited above were corroborated by EXHIBIT DW1-2 DW1-32 (Nigeria Air Force Report of Officers Promotion Board 1 of 2005) which shows that the pass mark for the promotion examination was 73.75 but that the plaintiff scored 66 marks. He referred the court to ANNEX E captioned NAF OFFICERS PROMOTION BOARD 1-2005 RANK- GP CAPT TO AIR CDRE SUMMARY SCORE SHEET, wherein the plaintiff’s S/No. is 17 with NAF/1050.
Counsel further argued that EXHIBIT DW1-3 DW1-3C (NATIONAL WAR COLLEGE COURSE SUMMARIES 12-15), shows that pass mark was C+ but the plaintiff scored 64.29 (C High). The claimant’s name is No. 6 on the list with NAF/1050. Also EXHIBIT DW1-2 DW1-36 () Nigeria Air Force Report of Officers Promotion Board 1 of 2007 clearly shows that pass mark was 78.12 but the claimant scored 70.10.
It is the contention of learned defence counsel that the above evidence was not controverted by the plaintiff either by way of documentary evidence or under cross-examination. He further stated that the plaintiff admitted that promotion is not automatic to the effect that certain conditions must be satisfied which include passing examination for promotion. Counsel further submits that the claimant admitted that he is aware that there are conditions for promotion to the next rank.
He submitted further that the evidence of a subpoenaed witness, CW8- Air Commodore Idonibo, is against the case of the claimant. Counsel quoted the CW 8 as testifying under cross-examination thus;
“Yes I am aware of the fact that in 2007, the claimant was the Director of Administration Headquarter, Nigeria Air Force. It is not automatic that because claimant was holding the office of Director of Administration of the Air Force Headquarter he must be promoted to the next higher rank when there was vacancy. There are other criteria to be considered”
He also quoted the CW9 as testifying under cross examination thus;
“Yes an outstanding performance at the war college course does not guarantee promotion to the next higher rank. In promotion having an outstanding confidential report does not mean he will be promoted. Proceeding to training for pilot in the Air Force is not automatic open when the officer had passed medical fitness test to be a pilot. There are so many things that the Board considers when considering whether to promote or not to promote an officer in the Nigeria Air Force to a higher rank. Promotion in the Air Force is not solely based on academic performance or confidential report, the principle of spread is also a factor that the Board and authority take into consideration during promotion exercise”.
Defence counsel opined that the above evidence/testimonies are all against the claimant’s interest. Citing the cases of EJIMADU V. DELTA FREEZE LTD (2007) 13 NWLR PT.1050 P. 96 @ 110 PARAGRAPHS E-F and JOLASHUN V. BAMGBOYE (2011) ALL FWLR PT.595 P.203 SC, counsel submitted that the law is trite that evidence against interest is the best evidence that the court can act on. He further posited that S.131 (1)(2) of the Evidence Act (as amended) provides that he who asserts must proof. Relying on the cases of ORJI V. DORJI TEXTILE MILLS (NIG.) LTD (2010) ALL FWLR PT. 519 P.999 SC @ P. 1013-1014 and ELEMA V. AKENZA (2000) 6 SCNJ 226 @ 238, counsel argued that it is the duty of the claimant to proof his assertions. He is of the view that it is the duty of the claimant to adduce credible evidence to establish his entitlement and he must succeed on the strength of his own case and not on the weakness of the defendants’ case.
Counsel argued that it is the duty of the claimant to adduce evidence to proof the first relief in the claim, which is declaratory. He argued that since the claimant has refused to proof the first declaratory relief, he must fail in his consequential reliefs as contained in the claim. He referred to the cases of ANYARU V. MANDILAS LTD (2007) 10 NWLR PT. 1093 P. 462 @ 477-478; YUSUF V. CO-OPERATIVE BANK LTD (1994) 7 NWLR PT. 359 P. 676 @ 696 PARAGRAPH A and NDAYAKO V. DANTORO (2004) 13 NWLR PT.889 P. 187 @214 to support the above position.
ISSUE 2.
WHETHER HAVING FAILED TO COMPLY WITH THE PROVISION OF S. 178 (3) OF THE ARMED FORCES ACT, BEING A CONDITION PRECEDENT, THE CLAIMANT CAN INVOKE THE EXCERCISE OF JURISDICTION.
Learned defence counsel started his argument on this issue by recapping the S. 178 of the Armed Forces Act, Cap A 20, LFN 2004 thus;
- if an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Forces’ council
- on receiving a complaint under subsection (1) of this section, the Forces’ Council shall investigate the matter and grant any redress which appears to the Forces Council to be necessary or if the complaint so requires, the Forces Council shall make its report on the complaint in order to seek directions of the President on the matter.
- Subject to subsection (1) of this Section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action.
- An initial complaint by an officer to his commanding officer under subsection (1) of this Section shall be made not later than three months of the wrong in respect of which it is brought, and where the officer has not obtained the redress to which he thinks himself entitled, he may make a further complaint in the prescribed manner to the authority prescribed under subsection (1) of this section not later than three months of the complaint or of receiving the unfavourable redress, as the case may be.
Counsel for the defendants argued that where a precondition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid. He submits that the plaintiff has not complied with the precondition against the alleged non promotion to the authority not later than three months after the alleged wrong as prescribed by the Armed Forces Act, in order to exhaust all the remedies before approaching this court and therefore failed to satisfy the condition precedent to invoking the exercise of this Honourable Court’s Jurisdiction. Counsel cited the cases of ORAKUL RESOURCES LTD v. N. C. C. (2007) ALL FWLR PT. 390 P.1482 @ P. 1506 PARAGRAPHS D-H in support of the above position and urged the court to dismiss the plaintiff’s suit on the ground that;
- Promotion is a privilege for officers and not a right.
- That an outstanding performance at the war college course does not guarantee promotion to the next higher rank
- An outstanding confidential report does not mean he must be promoted.
- Proceeding to training as pilot in the Air Force is not automatically open when the officer had passed medical fitness test to be a pilot.
- That the plaintiff failed his promotion examinations. He further referred to EXHIBITs DW1-2 DW1-32, DW1-3 DW1-3C and DW1-2-DW1-36
The claimant’s counsel distilled two issues for determination in his final written address thus:
- Whether the plaintiff’s suit is incompetent for failing to comply with the provisions of Section 178 (3) of the Armed Forces Act.
- Whether by the available evidence and material the plaintiff is not entitled to the reliefs sought.
On issue 1, i.e. Whether the plaintiff’s suit is incompetent for failing to comply with the provisions of Section 178 (3) of the Armed Forces Act, claimant’s counsel argued that the defendants’ counsel made a heavy weather of the failure of the plaintiff to comply with section 178 (3) of the Armed Forces Act before commencing this suit. Citing the case of OJUKWU V. OBASANJO & 3 ORS (2004) 12 NWLR PT. 886 P.169 P.210 PARAGRAPHS B-C, claimant’s counsel posited that in interpreting statutes, words in a statute should be accorded their ordinary meanings.
