IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE: HON. JUSTICE (Dr.) I. J. ESSIEN. –PRESIDING
DATE: 26th February 2019
SUIT NO NICN/EN/63/2017
BETWEEN
LANCE CORPORAL GREMA WAMULDU CLAIMANT
AND
THE NIGERIAN ARMY DEFENDANT
REPRESENTATION;
- C. Ekwealor Esq. for the Claimant
- E. Okika Esq. for the defendant.
JUDGMENT
The claimant in this suit by a complaint filed on the 10/11/2017 claim the following reliefs against the defendant in his amended statement of claim in this suit:
- AN ORDER of this Honourable Court that the defendant shall implement the Reinstatement and Compulsory Discharge of the Claimant from the Nigerian Army which was approved vide 82DIV/Gl/300/74 dated 22nd March, 2012 by Major General O.O. Oshinowo, (N/6733) then General Officer Commanding 82 Division, Nigerian Army Enugu.
- AN ORDER of this Honourable Court that the defendant pays to the Claimant monthly salary arrears of N56,000.00 (Fifty Six Thousand) and 20% interest of (sic) N 56,000.00 from 9th May, 2001 when he was unlawfully dismissed until the final determination of this suit.
- AN ORDER of this Honourable court directing the defendant to pay the Claimant the sum of N30.000.00 (Thirty Thousand) naira yearly being the Soft Furnishing allowance totalling N270,000.00 (Two Hundred and Seventy Thousand) naira, N30.000.00 (Thirty)’ Thousand) naira yearly being the Annual Leave allowance totalling N27O,OO0.0O (Two Hundred and Seventy Thousand), N30,000.00 (Thirty Thousand) naira yearly being the transport allowance totalling N 270,000.00k (Two Hundred and Seventy thousand) naira, N 26,000. (Twenty Six Thousand) naire yearly being the Torch Light allowance totalling N234,000.00 (Two Hundred and Thirty Four Thousand) naira, N25.000.00 (Twenty Five Thousand) naire yearly being the Uniform Maintenance allowance totalling N225,000.O0 (Two Hundred and Twenty Five Thousand) naira, N17.000.00 (Seventeen Thousand) naira ‘Yearly being the Security Risk allowance totalling N153,000.0O ( One Hundred and Fifty Three Thousand) naira, respectively from 2001 to 2009 when the above mentioned allowances were consolidated into salary.
- AN ORDER of this Honourable Court directing the defendant to pay the Claimant 20% yearly interest of the following allowances: N270,000.00 (Two Hundred and Seventv Thousand) naira being Soft Furnishing allowance, N270,000.00 (Two Hundred and Seventy Thousand) naira being Annual Leave allowance, N270,000.00 (Two Hundred and Seventy Thousand) naira being transport allowance, N234,000.00 (Two Hundred and Thirty Four Thousand) naira being Torch Light allowance, N225,000.00 (Two Hundred and Twenty five Thousand) naira, being the Uniform Maintenance allowance, N153,000.00 (One Hundred and Fifty Three Thousand) naira, being Security Risk allowance (One Hundred and Fifty Three Thousand) naira from 2001 to 2009 respectively when the above mentioned allowances were consolidated into salary
- N20,000,000.00 (Twenty Million) naira general damages against the defendant
The claimant filed a witness deposition along with the statement of fact and also front loaded some documents he intended to rely on in proof of his claims. At the resumed hearing of the case on the 11/6/2018 the claimant testified as CW1 and tendered the following documents;
1) Exhibit C1 dated 3/12/2010 Review of findings/award
2) Exhibit C2 document dated 22/3/12 titled Redress from Soldier Ex-95NA/39/1733LCPL
3) Exhibit C3 dated 13/4/2012, titled Redress from Soldier Ex-95NA/39/1733/LCPL
4) Exhibit C4 document dated 10/4/12, titled Review of Redress from Soldier Ex- 95/29/1733 LCPL Grema Wamudu.
5) Exhibit C5 document dated 13/4/12 titled ‘Not to be Displayed’
6) Exhibit C6 document dated 24/4 /12 titled Compulsory Discharge of Soldier.
7) Exhibit C7, form 9B titled Discharge/Pension and Gratuity Assessment.
8) Exhibit C8, titled Request for Payment of Arears Ex-95NA/1733/LCPL Grema Wamuldu.
9) Exhibit C9, titled Request for Payment of Arrears.
- Exhibit C10 Document dated 20/6/13 titled Request for payment
of Areas.
The defendant opened and closed his case on the 12/6/2018. The defendant called one witness Staff Sargent (Barr.) Effiong Udo who adopted his witness deposition, he tendered no exhibit and was cross examined by the claimant counsel. At the conclusion of evidence the court directed the parties to file their written addresses. On the 20/2/2019 when the parties appeared before the court to adopt their final written address, the claimant counsel applied to amend the statement of facts the application was granted. Attached to the statement of fact was a witness deposition of the claimant. However the counsel to the claimant did not apply to recall CW1 to adopt the witness statement on oath attached to the amended process. The said witness deposition cannot be allowed to clog the file. It is therefore accordingly struck out.
BRIEF STATEMENT OF THE FACTS.
The Claimant was enlisted into the Nigerian Army on 1st March, 1995, and until his discharge was posted to the 82 Division Nigerian Army Enugu. He was alleged to have conspired with one Pte Zacharia Yohanna to steal 20 litres of kerosene belonging to the Nigerian Army. Following the above allegation, the 13 Brigade Garrison Commander, nevertheless charged and summarily tried the Claimant and one Pte Zacharia Yohanna with offences under section 66 and 98 of the. Armed Forces Decree 105 of 1993 as amended (now the Armed Forces Act Cap A 20 LFN 2004) which bothered on stealing of service property and abetting service offences respectively. On the 8th May 2001, the 13 Brigade Garrison Commander sentenced Pte Zacharia Yohanna to Dismissal from service but reduced the, claimant from the rank of a Lance Corporal (LCPL) to Private (Pte) in the Nigerian Army and 28 days imprisonment with hard labour. On the 9th May 2001, The Brigade Commander ordered for a re-trial of the claimant. The claimant was re-tried by the 13 Brigade Commander on the same offences and awarded dismissal in substitution for the reduction in rank earlier awarded to the claimant by the 13 Brigade Garrison Commander. The offences of stealing and abetting of services offences punishable under section 66 and 98 of the Armed Forces Decree 105 of 1993 as Amended (which is now the Armed Forces Act cap A 20 LFN 2004). upon which the Claimant was tried are not triable summarily. On 16th March 2009, the Chief of Army staff (COAS ) nullified and voided the trial and the dismissal of Pte Zacharia Yohanna for lack of jurisdiction of the 13 Brigade Garrison Commander since the offence cannot be tried summarily. The Chief of Army Staff (COAS), reinstated Pte Zacharia Yohanna and compulsorily discharged him with effect from 16th March, 2009. Before the Claimant’s case could reach the office of the Chief of Army Staff (COAS), for the same consideration, as Pte Zacharia Yohanna, the Chief of Army Staff had on 3rd December, 2010 directed all the General Officers Commanding (GOCs) to dispose all summary trials at their divisional levels. On 22 March 2012 following the review, the Claimant’s unlawful dismissal from the Nigerian Army was reviewed by Major General O.O. Oshinowo the then General Officer Commanding 82 Division Nigerian Army Enugu, who commuted the Claimant’s dismissal to compulsory discharge from the Nigerian Army with effect from the 22nd March 2012. The Claimant was officially informed about his reinstatement and compulsory discharge from the Nigerian Army vide a letter dated 13/4/2012 and sent from the Army legal services unit. Despite the fact that the claimant has duly completed the formality for the discharge and has also written several letters demanding for the payment of his entitlement, the defendant has refused to pay the claimant his entitlement hence this action. This is the brief facts of the case.
ISSUE FOR DETERMINATION.
From the facts and circumstances of this case, this court is called upon to determine whether the claimant has been able to prove his claims before this court.
In the first claim in the particulars of claim, the claimant is seeking an order of this court directing the defendant to implement the Reinstatement and Compulsory Discharge of the Claimant from the Nigerian Army which was approved vide 82DIV/Gl/300/72 dated 22nd March, 2012 by Major General O.O. Oshinowo, (N/6733) then General Officer Commanding 82 Division, Nigerian Army Enugu.
The claimant testified that he was enlisted in the Nigerian Army on the 18/3/1995. That he was tried along with one Pte. Zacharia Yohanna for the offence of theft pursuant to section 66 and 98 of the Armed forces Decree 103 of 1993 (as amended now by the Armed Forces Act CAP A20 LFN 2004) That upon his conviction for the said offence he was awarded the punishment of reduction in rank. However, he was retried again by the 13 Brigade Commander and awarded the punishment of dismissal from the Nigerian Army. The claimant testified that he and Pte. Zacharia Yohanna petitioned the Nigerian Army high command. Pte Zacharia Yohanna’s dismissal was nullified and voided by the Chief of Army Staff. He was reinstated and discharged with all his entitlements. He testified that before his case could reach the Chief of Army Staff to be considered, the Chief of Army Staff vide a directive Ref: No AHQDOAA/G1/300/189 tendered as Exhibit C1 directed the GOC to dispose of all similar cases in their divisions. The defendant testified that on the 22/3/2012 his dismissal was reviewed by Major General O. O. Oshinowo the GOC 82 DIV Enugu and commuted into compulsory discharge, He tendered Exhibit C2 the memo Ref; 82DIV/G1/300/74 as evidence of the review. The review was communicated to the claimant through a letter dated 13/4/2012 Ref; No 82DIV/LS/G1/300/22, tendered as Exhibit C3. The claimant also tendered Exhibit C4 a memo directing the relevant unit of the defendant to implement the decision in the Exhibit C2. I have carefully considered Exhibit C1 the authority given to the Commandant of the 82 DIV to review the dismissal of the claimant. That authority emanated from the Chief of Army Staff and in the distribution the Headquarters 82 Div was also directed to carry out the exercise The defendant witness in his witness deposition and during cross examination has attempted to make this court to belief that the Major General O.O. Oshinowo had no powers to carry out the review. Specifically in the following paragraphs of his witness deposition DW1 Staff Sgt. (Barrister) Effion Udoh stated inter- Alia;
Paragraph 10.
The Generak Officer Comanding (GOC) Major General
O.O. Oshinowo (rtd) had no power to review a summary trial and compulsorily discharge the claimant.
Paragraph 12.
That there was no policy letter by the Nigerian Army that permitted the General Officer Commanding to review a summary trial
Paragraph 13.
That the GOC of 82 Division Major General O.O. Oshinowo (N6733) had no power to review a summary trial or commute a lawful dismissal of the claimant to compulsory discharge (retirement) in the Nigerian Army.
Paragraph 14.
That the issue of review of summary trial, reinstatement or discharge of any kind in the Nigerian Army is the exclusive power of the Chief of Army Staff and not the General Officer Commanding.
This is the defence that the DW1 is putting up for the defendant in this suit.
I have carefully reviewed the provisions of the Armed Forces Act Cap A 20 Laws of the Federation of Nigerian 2004. For clarity, Section 147 (1) of the Armed Forces Act provides;
(1) Where a charge has been dealt with summarily and the charge is not dismissed, the authority specified in sub-section ( 4) of this sub-section may review the finding or award either upon a petition submitted under subsection (2) of this section or at anytime if facts material to the case arise which were not available during the trial.
Section 147 (3) (a) of the Armed Forces Act provides;
Where on a review under this section, it appears to the authority
(a)expedient so to do by reason of any mistake of law in the
proceedings on the summary dealing with the charge or of
anything occurring in those proceedings which in the opinion of
the authority, involved substantial injustice to the accused, the
authority may quash the award;
Also Section 147 (4) of the Armed Forces Act provides In this section, ‘the authority’ means appropriate superior authority. Furthermore section 128 (1) (a) and (b) of the Armed forces Act 2004 defines appropriate superior authority in relation to persons charged with offence, that is;
(a) The commanding officer; and
(b) any officer of the rank of Brigadier or above or officer of corresponding rank or those directed to so act under whose command the person is for the time being.(underlining for emphasis)
A community reading of the above quoted provisions leaves no one in doubt that Major General O.O. Oshinowo then, the General Officer Commanding (GOC) 82 Division Nigerian Army Enugu was a superior authority because he was a commanding officer. Also it is important to note that even though section 128 (b) mentions the rank of ‘Brigadier,’ that section goes further to use the word ‘or’ in relation to Those directed to so act under whose command the person is for the time being. The use of ‘or’ when used in a statute is disjunctive
The court of Appeal in the case of Fayemi V. Oni [2010] 17 NWLR (Pt.122) 362 at 399 paras b & e. where Salami PCA, stated
“Whenever the word “or” is used in a statute, it bears a disjunctive meaning. The use of the word “or” is therefore a separating factor of preceding provisions from the one coming under, and thus giving a sense of complete and an independent identity …”
See also:- Obase V. National Judicial Council (2008) ALL FWLR (Pt.434) 1637; Kim v. Emefo (2001) 4 NWLR (Pt.702) 147.
The correct interpretation of section 128 (b) of the Army Act therefore is that any person directed to Act under whose command the person is for the time being implies that such a person may not necessary be in the rank of a ‘Brigadier’ provided that such a person though below the rank of a Brigadier has been so directed to Act. Therefor it would be a correct interpretation of that section to state that (1) a Commanding Officer can review a summary trial (2) A Brigadier General can review a summary trial and (3) any person below the rank of a Brigadier who has been directed to so act under whose command the person is for the time being
It is not in dispute that Major General O.O. Oshinowo though not a Brigadier General was the Commanding Officer of 82 Division of the Nigerian Army, by a directive vide Ref: No AHQDOAA/G1/300/189 tendered as Exhibit C1, the Chief of Army Staff directed the GOC 82 Division to dispose of all similar cases of wrongful summary dismissals pending in 82 divisions of the Nigerian Army. By this directive the Commanding Officer 82 Division was vested with the authority to review the claimant summary dismissal as evidenced in Exhibit C2.
I find the testimony DW1 Staff Sgt. (Barr.) Effiong Udoh very mis-leading. DW1 has sought in the defence put forward for the defendant in this case to flout the lawful order of the Chief of Army Staff and the GOC of the 82 division, Major General O.O. Oshinowo. DW1 who is a lawyer has exhibited ignorance of the law regulating review of summary dismissal as stated in S. 147(1), S. 147(3)(a), S147(4) and S.128(1) (a) and (b) of the Armed Forces Act 2004. I think that with this kind of defence, The defendant in this suit is attempting to violate the law that regulates its own proceedings. Thereby disobeying the lawful authority of the Chief of Army Staff as contained in Exhibit C1, C2, C3, and C4. Even assuming that there was no authority vested in the GOC 82 DIV to review the dismissal of the claimant which is not the case, I do not think that DW1 had the authority to question the action of the GOC 82 DIV acting pursuance to a lawful directive of the chief of Army Staff. This kind of defence has the tendency to bring a disciplined organisation like the Nigerian Army to infamy. The contents of Exhibits C1, C2, C3, and C4, which were tendered in evidence without any objection by the defendant in this case, are very instructive. It is important to note the provisions of paragraph 2 of Exhibit C2 which states;
‘Consequently, by virtue of the power, conferred on me in Sections 147 (3l(a) and 128 (1) (b) the dismissal of Ex-95NA/39/1733 LCpl Grema Wamudu is hereby commuted to compulsory discharge. The discharge is to take effect from, 21 march, 2012, the date this approval was granted’.
Assuming there was no authority vested in the GOC 82 Division to review the dismissal of the claimant, the directive from the Chief of Army Staff to the GOC 82 division to review the decision to dismiss the claimant made the powers to be automatically vested to do that which the GOC did in exhibit C2. I am strongly of the opinion that such powers had already been vested in the GOC 82 Division by the provision of S. 147(1)(4), S. 147(3)(a) and S.128(1) (a) and (b) of the Nigerian Army Act 2004. The defence put forward by the defendant in this case is a defence which violets the provision of the Army Act.
This decision was communicated to the claimant in Exhibit C3. In Exhibit 3 the claimant was advised to proceed his former unit to commence the discharge process. Which the claimant complied with as shown on Exhibit C7. The defendant accordingly processed the claimant discharge documentation in Exhibit C8, C9 and C10. This evidence was never controverted by the defendant witness, this court is bound to accept this evidence as establishing the truth of the facts asserted and proved by the claimant in this suit on the authority of Olaniyan V. Oyewole [2010] LPELR-9109. See also Adeleke & Ors V. Iyanda & Ors. [2001] 6 SCNJ at 105. This court is at sea why the defendant failed to carry on and conclude the process of discharge of the claimant. I am satisfied that there being no reason advanced by the defendant for their failure to conclude the discharge process of the claimant from the defendant, This relief of the claimant succeeds. Accordingly, the defendant is hereby ordered forthwith to implement the Reinstatement and Compulsory Discharge of the Claimant from the Nigerian Army which was approved vide memo 82DIV/Gl/300/74 dated 22nd March, 2012 by Major General O.O. Oshinowo, (N/6733) then General Officer Commanding 82 Division, Nigerian Army Enugu, acting on the powers conferred by memo No AHQDOAA/G1/300/189 of 10th December 2010.
And I so order.
In reliefs numbers 2, 3, 4, and 5 claimant claimed various sums of monies under the heads of arrears of salary, soft furnishing allowance, Annual Leave allowance, transport allowance, torch light allowance, uniform maintenance allowance, and security risk allowance. This court will not reproduce the claims as they are already tabulated at the beginning of this judgment. These claims are in the nature of special damages. The effect in law is that they require strict proof. In the case of Neka BBB Manaufacturing Company Ltd. V. ACB Ltd. (2004) LPELR-1982 (SC). The Supreme Court defined the term strict proof in the following words;
The term strict proof required in proof of special damages means no more than that the evidence must show the same particularity as it is necessary for its pleadings. It should therefore normally consist of evidence of particular losses which are exactly known or accurately measured before the trial. Strict proof does not mean unusual proof, as the play of the appellant counsel on those words tend to suggest, but simply implies that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible (per Pat Acholonu JSC.). See also Kurubo V. Zach-Motson Nig. Ltd. [1992]5NWLR (pt 239) 1021.
The effect of the requirement of strict proof on the claimant’s case before this court is that in order for the claimant to succeed on the various heads of monetary claims in paragraph 2, 3, and 4 of the amended statement of claim is that the claimant must offer proof of how he became entitled to the various monetary claims. The claimant must lead evidence of how the various sums claimed were calculated and arrived at. The claimant must also plead and give evidence if any of the template used in calculating the figures claimed. I have carefully examined the documents tendered by the claimant in this suit, none of those exhibits relate to the salaries, allowances and other entitlement of the claimants. Furthermore, the witness deposition of the claimant contains no strict proof of the various heads of monetary claims made by the claimant. Paragraph 22 of the claimant witness statement on oath only mentioned the amount he is entitled on the various heads of soft furnishing allowance, leave allowance, transport allowance, torch light allowance, uniform maintenance allowance and security risk allowance. The figures stated in these paragraphs are at variance with the figures stated in paragraph 2,3 and 4 of the amended statement of claim. The law is that pleadings is not evidence. A party who desires the court to give judgment in his favour must lead evidence to establish the averment in the pleadings. This the claimant in this case has failed to do. In the circumstances this court finds that the claimant has failed to discharge the burden of proof placed on him to strictly proof his entitlement to the various sum of money claimed in the amended statement of claimed before this court. Accordingly claim no.2,3, and 4 on the amended statement of claim must fail and is hereby accordingly dismissed.
The claimant in this suit in paragraph 4 of the amended statement of claim also claims 20% yearly interest on the various heads of allowances. I have in this judgment adjudged that the claimant did not proof his entitlement to the various heads of monetary claims. The interest thereby claimed on the various heads cannot be granted by this court. This court would not even consider the merit of the claim of interest. The claim of interest therefore fails and is hereby dismissed.
On the claim N20 million-naira general damages, I have already noted in this judgment that after the review of the dismissal of the claimant by the GOC vide Exhibit C2 acting on the orders of the directive of the Chief of Army Staff as contained in Exhibit C1, the dismissal of the claimant was commuted to compulsory discharge. For an undisclosed reason the defendant refused to carry through or implement the compulsory discharge. The refusal to implement the compulsory discharge has no doubt caused the claimant some inconveniences. The claimant in paragraph 30 of his witness deposition testified that he has suffered shame, mental agony, starvation, hardship, amongst other things as a result of his unlawful dismissal from the Nigerian Army. These allegations were never controverted by the defendant. This has resulted in this action. This is an appropriate case in which this court can award general damages. Accordingly, this court hereby awards the sum of N1,000,000 million naira general damages against the defendant.
This suit succeeds in part and it is hereby ordered as follows;
1) The defendant is hereby ordered forthwith to implement the Reinstatement and Compulsory Discharge of the Claimant from the Nigerian Army which was approved vide memo 82DIV/Gl/300/74 dated 22nd March, 2012 by Major General O.O. Oshinowo, (N/6733) then General Officer Commanding 82 Division, Nigerian Army Enugu, acting on the powers conferred by memo No AHQDOAA/G1/300/189 of 10th December 2010 as ordered by the Chief of Army Staff.
2) The defendant is hereby ordered to pay the sum of N 1,000,000 naira as general damages to the claimant
3) The terms of this judgment shall be complied with within 30 days from the date of this judgment.
Judgment is entered accordingly.
______________________________
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
