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National Industrial Court

MAJOR GENERAL IJIOMA NWOKORO IJIOMA -VS- NIGERIAN ARMY & 3 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 23RD JANUARY, 2017                                         SUIT NO: NICN/ABJ/262/2016

BETWEEN:

MAJOR GENERAL IJIOMA NWOKORO IJIOMA                             CLAIMANT

AND:

  1. NIGERIAN ARMY
  2. MINISTER OF DEFENCE                                                                  DEFENDANTS
  3. CHIEF OF DEFENCE STAFF
  4. CHIEF OF ARMY STAFF                                          

REPRESENTATION

MIKE OZEKHOME SAN with P. E. C. EKWEME Esq, GODWIN IYINBOR Esq, STEPHEN OGBADU Esq, JUSTINE OMOGBEME Esq. HARRISON OBI Esq, S. A. UMENO MISS, T. A. LAFENA for the Claimant

  1. D. OWOLABI with A. A. ENOfor the 1stand 4th defendants
  2. D. OWOLABI Esq,holding the brief ofP. A. IMAFIDOR Esq, for the 2nd and 3rd defendants

 

R U L I N G

The Claimant commenced this action vide Originating Summons filed on 15th July, 2016 against the defendants with the determination of the following questions:

  1. Whether having regard to the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, particularly paragraph 09.02c(4) thereof, viz-a-viz the provisions of the Armed Forces Act Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be legally compulsorily retired by the Respondent vide letter dated 9th June, 2016, titled “COMPULSORY RETIREMENT NA OFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, (the Applicant herein).
  2. Whether having regard to the provisions of the Armed Forces Act, Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be said to have committed any offence or breached any of its provisions thereof, to warrant his compulsory retirement from the services of the Nigerian Army, by the Respondents vide letter dated 9th June, 2016, titled, “COMPULSORY RETIREMENT NA OFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, pursuant to the provisions of Paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised.
  3. Whether having regard to the provisions of the Armed Forces Act, Cap. A20, particularly Part XII, dealing with offences and the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, particularly paragraph 09.02c (4) thereof, dealing with retirement, and other extant statutory provisions regulating the Applicant’s appointment, the purported compulsory retirement of the Applicant vide letter dated 9th June, 2016, followed due process, and same can be said to be justified in the circumstances.
  4. Whether having regard to the extant provisions of the Armed Forces Act, Cap. A20, particularly Part XII thereof, dealing with punishment, and Part XIV thereof, dealing with trial procedure for officers in the Cadre of the Applicant and other extant statutory provisions regulating the Applicant’s in purportedly retiring the Applicant compulsorily vide letter dated 9th June 2016, pursuant to the provision of paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS)  2012 Revised.
  5. Whether having regard to the provisions of the Armed Forces Act, Cap. A20, the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, and other extant statutory provisions regulating the service of the Applicant, and the circumstances of this case taken into consideration, the Applicant was ever given any notice, query, arrested, arraigned, charged, and or went through any form of trial before a Court Martial or a regular court, and punished for any offence to have warranted in his being compulsorily retired by the Army Council vide letter dated 9th June, 2016, pursuant to the provisions of Paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised.
  6. Whether having regard to the alleged disciplinary grounds i.e. serious offence(s) upon the which the Applicant was purportedly retired compulsorily, he was accorded any fair hearing pursuant to the provisions of Sec. 36 (1) (4) of the Constitution of the Federal Republic of Nigeria, 1999, as altered to have justified the compulsory retirement of the Applicant from the services of the Nigerian Army vide a letter dated 9th June, 2016, pursuant to the provisions Paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised.
  7. Whether in the absence of the trial of the claimant before any court of competent jurisdiction, Court Martial properly so called, the Army Council was justified to have constituted itself into the Complainant, the accuser, the Prosecutor and the judge, such as to have compulsorily retired the Applicant on alleged disciplinary grounds, i.e. serious offence(s) and without according the Applicant any form of hearing at all in all its sitting.
  8. Whether the claimant is entitled to the reliefs sought upon the declaration of this Honorable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case.

Upon the determination of the above questions by the Honorable Court, Applicant seeks the following reliefs:

  1. A DECLARATION that the purported compulsory retirement of the claimant from the services of the Nigerian Army vide letter dated 9th June, 2016 titled, “COMPULSORY RETIREMENT NA OFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)” pursuant to the provisions of paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, did not follow due process and is consequently illegal, invalid, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.
  2. A DECLARATION that the claimant was never validly and legally retired from the services of the Nigerian Army on the 9th of June, 2016, vide letter dated 9th June, 2016, issued by the Army Council pursuant to its meeting of the same date, or at any other time.
  3. A DECLARATION that the claimant is still a serving member of the Nigerian Army, and is to be accorded all rights and privileges that he is entitled to based on his rank and position, as provided for in the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised.
  4. A DECLARATION that the present action of the claimant in seeking justice before this Honorable Court, shall not constitute any ground to witch-hunt or victimize the claimant upon his reinstatement to the services of the Nigeria Army.
  5. A DECLARATION that the association of the claimant’s purported compulsory retirement with the on-going arms deal probe and/or involvement in political partisanship, when the claimant was never involved, indicted, invited, questioned, detained or interrogated in any way whatsoever, by either the Presidential Probe Panel on the Arms Deal or the Election Probe Panel, or be involved in any of the two scandals, is illegal, unlawful, wrongful and constitutes a gross violation of the Applicant’s constitutional rights.
  6. A DECLARATION that the claimant is entitled to a public apology and compensation for the damage done to his person, his office, the lowering of his integrity, and reputation, and the psychological torture and mental agony undergone by him and his family consequent upon the compulsory retirement of the claimant upon grounds that are completely unfounded, baseless, frivolous and untrue.
  7. AN ORDER setting aside the letter of compulsory retirement dated 9th June, 2016, titled “COMPULSORY RETIREMENT NA OFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)” made pursuant to the provisions of paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, issued by the Army Council, purportedly retiring the claimant from the services of the Nigerian Army with effect from 9th June, 2016.
  8. AN ORDER directing the immediate reinstatement of the claimant to his rank and payment of all entitlements and perquisites of office due to him pursuant to the order setting aside the letter of compulsory retirement dated 9th June, 2016.
  9. AN ORDER restraining the Respondents, whether by themselves, their agents, servants and/or privies and/or all officers, servants and functionaries of the Federal Republic of Nigeria or any other public officer, whatsoever or otherwise howsoever, from giving or continuing to give effect to the letter dated 9th June, 2016, purported to have compulsorily retired the claimant from service of the Nigerian Army.
  10. AN ORDER restraining the Respondents, whether by themselves, their agents, servants and/or privies and/or all officers, servants and functionaries of the Federal Republic of Nigeria or any other public officer, whatsoever or otherwise howsoever, from obstructing, disturbing, interfering, stopping or preventing the Applicant in any manner whatsoever, from performing the functions of his office as a serving Major General of the Nigerian Army in the last position and place of assignment, before the letter of compulsory retirement dated 9th June, 2016.
  11. AN ORDER restraining the Nigerian Army, or any other government or Security Agency from interfering or acting by proxy, or otherwise, to intimidate, harass, arrest and/or detain the Applicant, or taking any untoward action on any fact connected with or related to the facts of this case, upon which the Applicant seeks for justice before this Honorable Court.
  12. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of #1 billion (#1,000,000,000.00) only as general, aggravated, punitive and exemplary damages for the unlawful, wrongful, illegal, unconstitutional and oppressive compulsory retirement and the attendant humiliation, psychological trauma, mental agony and odium undergone by the Applicant and his family, by the actions of the Respondents.

ALTERNATIVELY, IN THE EVENT THAT THE APPLICANT CAN NO LONGER BE EMPLOYED IN THE SERVICE OF THE NIGERIAN ARMY DUE TO THE INABILITY TO CONCLUDE THIS ACTION BEFORE HIS DATE OF OFFICIAL DISENGAGEMENT.

  1. AN ORDER compelling the Respondents to tender a public apology in Three (3) leading National Daily Newspaper for the humiliation, embarrassment, and pubic odium, and obloquy undergone by the Applicant by the Respondents’ unlawful, illegal and wrongful compulsory retirement vide letter dated 9th June, 2016.
  2. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of #5 Billion (#5,000,000,000.00) only as general, aggravated, punitive and exemplary damages for the unlawful, wrongful, illegal, unconstitutional and oppressive compulsory retirement and the attendant humiliation, psychological trauma, mental agony and odium undergone bythe Applicant and his family, by the action of the Respondents.

WRITTEN ADDRESS IN SUPPORT OR ORIGINATING SUMMONS

ISSUES

  1. Whether, having regard to the provisions of the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, particularly Paragraph 09.02c (4) thereof, viz-a-viz the provisions of the Armed Forces Act Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be legally compulsorily retired by the Respondent vide letter dated 9th June, 2016, titled , “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, (the Applicant herein).
  2. Whether having regard to the provisions of the Armed Forces Act, A20, particularly Part XII, dealing with offences thereof, the Applicant can be said to have committed any offence or breached any of its provisions thereof, to warrant his compulsory retirement from the services of the Nigerian Army, by the Respondents vide letter dated 9th June, 2016, titled , “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised.
  3. Whether having regard to the provisions of the Armed Forces Act, A20, particularly Part XII, dealing with offences and the provisions of the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, particularly Paragraph 09.02c (4) thereof, dealing with retirement, and other extant statutory provisions regulating the Applicant’s appointment, the purported compulsory retirement of the Applicant vide letter dated 9th June, 2016, followed due process, and same can be said to be justified in the circumstances.
  4. Whether having regard to the extant provisions of the Armed Forces Act, A20, particularly Part XII thereof, dealing with punishment, and Part XIV thereof, dealing with trial procedure for officers in the cadre of the Applicant and other extant statutory provisions regulating the Applicant’s appointment, the Respondents can be said to have followed due process in purportedly retiring the Applicant compulsorily vide letter dated 9th June, 2016, pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised.
  5. Whether having regard to the extant provisions of the Armed Forces Act, A20, the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, and other extant statutory provisions regulating the service of the Applicant, and the circumstances of this case taken into consideration, the Applicant was ever given any notice, query, arrested, arraigned, charged and or went through any form of trial before a Court Martial or a regular court, and punished for any offence to have warranted in his being compulsorily retired by the Army Council vide letter dated 9th June, 2016,pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised.
  6. Whether having regard to the alleged disciplinary grounds i.e. serious offence(s) upon which the Applicant was purportedly retired compulsorily, he was accorded any fair hearing pursuant to the provisions of Sec. 36(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, to have justified the compulsory retirement of the Applicant from the services of the Nigerian Army vide a letter dated 9th June, 2016, pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised.
  7. Whether in the absence of the trial of the claimant before any court of competent jurisdiction, Court Martial properly so called, the Army Council was justified to have constituted itself into the complainant, the accuser, the prosecutor and the judge, such as to have compulsorily retired the Applicant on alleged disciplinary grounds, i.e. serious offence(s) and without according the Applicant any form of hearing at all in its sitting.
  8. Whether the claimant is entitled to the reliefs sought upon the declaration of this Honorable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case.

ARGUMENT

Learned Counsel for the claimant Mike Ozekhome SAN cited the case of NAWA v. ATTORNEY GENERAL CROSS RIVER STATE (2008) ALL FWLR (PT. 401) 807 @ 831, PARA. 3 B-D, on the effect of compulsory retirement of a civil servant without recourse to the rules guiding his employment, counsel. Leaned SAN submitted that considering the fact that the claimant’s compulsory retirement is hinged on alleged criminal conduct, the burden is on the Army Council (Respondent) to satisfy the court that it has duly complied with all relevant provisions regarding such compulsory retirement. P.H.M.B. v. EJITAGHA (2000) 11 WRN 1 @ 6; (2000) 11 NWLR 9PT. 677) 154 @ 160, per Uwaifo, JSC. He submitted that as a Major General in the Nigerian Army, the claimant cannot be tried summarily, but by a Court martial, which allows him representation to defend himself by counsel of his choice, thus ensuring fair hearing.  Furthermore, that where the proceedings take place, the Court Martial returns a verdict and gives a sentence subject to confirmation by the Armed Forces Council. SEC. 129 – 142 of the AFA; SECTIONS 140, 141, 152 (b) of the AFA.

It is counsel’s contention that the Army Council in reaching a decision to compulsorily retire the claimant, on alleged disciplinary grounds, i.e., serious offence(s), without the setting up of any Court Martial to try him and make its findings known to the Army Council, constitutes a gross violation of the claimant’s right to fair hearing. ZAKARI v. NIGERIAN ARMY & ANOR. (2015) LPELR-24721 (SC) 24 -35, PARAS. B-F, per Odili, JSC; OKORO v. NIGEIRAN ARMY COUNCIL (2000) 3 NWLR (PT. 647) 77, per Adamu, JCA @Pp. 25 – 32, PARAS. E-C. Relying on the authority of SAMUEL v. NIGERIAN ARMY (2006) LPELR-11751 (CA) @ Pp. 36-37, PARAS. C-E, per Awala, JCA; NIGERIAN ARMY v. DODO (2012) LPELR-8288 (SC) 29, PARA. F; MAJOR BELLO F. MAGAJI v. THE NIGERIAN ARMY (2008) LPELR-1814 (SC), per Ogbuagu, JSC; ADEBAYO v. NGERIAN ARMY & ANOR. (2012) LPELR-7902 (CA), Danjuma, JCA @ P. 25, PARAS. C-F; AGBITI v. NIGERIAN NAVY (2011) 4 NWLR (PT. 175), per Adekeye, JSC for the nature and structure of a General Court Martial. The Learned Senior Advocate submitted that the Court Martial has a duty to make its decisions and state how it came by them and that every finding of a court or tribunal must be based on reasons and the reasons for reaching a particular finding or conclusion definitely must be based on facts and failure to do this is fatal. IDAKWO v. NIGERIA ARMY (2004) 2 NWLR (PT. 857) 249; SEC. 36 (7) of the CFRN, 1999; ASAKE v. THE NIGEIRAN ARMY COUNCIL & ANOR. (2006) LPELR-5427 (CA), per Augie, JCA @ Pp. 25-26, PARAS. F-A. He argued further that the action of the Army Council breaches all known principles of fair hearing which is fundamental to all court procedure including Tribunals and those exercising quasi-judicial functions, the Court Martial and Army Council. SEC. 36 (4) of the CFRN, 1999 as altered; OKIKE V. LPDC & ORS. (2005) LPELR-7466 (CA) Pp. / 31 – 32, PARAS. G-A, per Ba’ba, JCA; PAM & ANOR. v. MOHAMMED & ANOR. (2008) LPELR-2895 (CA) Pp. 26-27, PARAS. F-A, per Oguntade, JSC. He also submitted that the courts have held that the principle  of fair hearing is breached where parties are not afforded a fair hearing or any hearing at all, as in the present case. EJEKA v. STATE (2003) LPELR-1061 (SC) 13, PARAS. A-D, per Tobi, JSC.

Learned SAN further submitted that in an action for wrongful retirement, once the issue of the wrongful retirement is decided, the next issue that cal

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