Compulsory retirement: Gen. Ijioma sues Army, Buratai, others

 

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: ………………..

BETWEEN

MAJOR GENERAL IJIOMA NWOKORO IJIOMA —– CLAIMANT

AND

1. NIGERIAN ARMY

2. MINISTER OF DEFENCE

3. CHIEF OF DEFENCE STAFF …………… DEFENDANTS

4. CHIEF OF ARMY STAFF

ORIGINATING SUMMONS

Let:

1. THE NIGERIA ARMY,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

2. MINISTER OF DEFENCE,

Ship House, Olusegun Obasanjo Way,

Area 10, P.M.B. 196, Garki,

Abuja.

3. CHIEF OF DEFENCE STAFF,

Defence Headquarters,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki, Abuja.

4. CHIEF OF ARMY STAFF,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

Within 14 days after service of this summon on them, inclusive of the day of such service, cause an appearance to be entered for them to this summons which is issued upon the Application of Maj. Gen. Ijioma Nwokoro Ijioma whose address is, Nigerian Army Resource Center, Mambilla Barrracks Junction, Asokoro, Abuja, who claims to be entitled to the determination of the following questions and claims the relief hereafter appearing:

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 9^th 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, 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 9^th June, 2016, titled “COMPULSORY RETIREMENT NA OFFICER MAJOR GEN. IJIOMA NWOKORO IJIOMA (NA/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 9^th 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 XIII 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 9^th 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.

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 9^th 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 which the Applicant was purportedly retired compulsorily, he was accorded any fair hearing pursuant to the provisions of Section 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 9^th 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.

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 Honourable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case.

Upon the determination of the above questions submitted by the Claimant for determination by this Honourable Court, the 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 9^th 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 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 9^th of June, 2016, vide letter dated 9^th 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 Officers of the Armed Forces (HTACOS) Officers (2012) Revised.

4. A DECLARATION that the present action of the Claimant in seeking justice before this Honourable Court, shall not constitute any ground to witch-hunt or victimize the Claimant upon his reinstatement to the services of the Nigerian 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 howsoever, 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 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 caused 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 9^th June, 2016, titled, “Compulsory Retirement NA Officer 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 9^th 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, 9^th 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 9^th June, 2016, purported to have compulsorily retired the Claimant from the service of the Nigerian Army.

10. AN ORDER restraining the Respondents, whether by themselves, their agents, servants, 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 9^th 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 Honourable Court.

12. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of N1 billion (N1,000,000,000.00) 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 caused 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 CONCLUDED THIS ACTION BEFORE HIS DATE OF OFFICIAL DISENGAGEMENT.

13. AN ORDER compelling the Respondents to tender a public apology in Three (3) leading National Daily Newspaper for the humiliation, embarrassment, and public odium, and obloquy caused the Applicant by the Respondents’ unlawful, illegal and wrongful compulsory retirement vide letter dated 9^th June, 2016.

14. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of N5 billion (N5,000,000,000.00) 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 caused the Applicant and his family, by the actions of the Respondents.

15. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.

This summons was taken out by Chief Mike A.A. Ozekhome, SAN, OFR, FCIArb, LL.d, of Mike Ozekhome’s Chambers, lead Counsel to the Applicant, whose address is Ukwe Court, 27, Jesse Jackson Street Opp. Lord Lugard Street, Off Onitsha Crescent, Asokoro Extension, Abuja, for the above named Applicant, Major General Ijioma, Nwokoro Ijioma.

The Respondents may appear hereunto by entering appearance personally or by a legal practitioner either by filing the appropriate processes duly completed at the Federal High Court Registry or by sending them to that office by post.

Note: If the Respondents do not respond within the time and at the place above mentioned, such orders will be made and proceedings may be taken as the Judge may think just and expedient.

Dated this ………. day of July, 2016.

………………………………………………………………………………

Chief Mike Ozekhome, SAN, OFR, FCIArb, Ll.d

Benson Igbanoi, Esq,

E. A. Egbebu, Esq,

Lady Josephine Mike Ozekhome, LL.M,

P. E. C. Ekwueme, LL.M,

Ndubuisi Michael, Esq,

Godwin Iyinbor, Esq,

Justin O. Omogbemeh, Esq,

Josephine Eret, (Miss),

Kamal Fawehinmi, Esq,

Harrison N. Obi, Esq,

C. C. Ihemadu, Esq,

Kodilinye Arinze, Esq,

C. A. Umeano (Miss)

Mike Ozekhome’s Chambers,

Counsel to the Claimant,

Ukwe Court,

No. 27, Jesse Jackson Street,

(Opposite Lord Lugard Street),

Off Onitsha Crescent,

Asokoro Extension, Abuja.

08035550444, 08022266688,

08055518815, 08033069592, 08095550444.

E-mail: [email protected],

[email protected]

FOR SERVICE ON:

1. THE 1^ST DEFENDANT,

The Nigerian Army,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

2. THE 2^ND DEFENDANT,

Minister of Defence,

Ship House, Olusegun Obasanjo Way,

Area 10, P.M.B. 196, Garki,

Abuja.

3. THE 3^RD DEFENDANT,

Chief of Defence Staff,

Defence Headquarters,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

4. THE 4^TH DEFENDANT,

Chief of Army Staff,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO. …………………………….

BETWEEN

1. MAJOR GENERAL IJIOMA NWOKORO IJIOMA … CLAIMANT

AND

1. NIGERIAN ARMY

2. MINISTER OF DEFENCE

3. CHIEF OF DEFENCE STAFF …… DEFENDANTS

4. CHIEF OF ARMY STAFF

AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, Major General Ijioma Nwokoro Ijioma, (N/8304), Christian, male, Nigerian citizen, of Nigerian Army Resource Centre, Mambilla Barracks Junction, Off Maitama Avenue, Asokoro, Abuja, do hereby make Oath and state as follows:

1. That I am the person referred to above, a bonafide Nigerian Citizen by birth and domiciliation, and who turned 53 years on 12^th June, 2016.

2. That by virtue of my position aforesaid, I am conversant with the facts of this case, except as may by me be stated otherwise.

3. That I Joined the Nigerian Defence Academy at the age of 20, and was enlisted into the Nigerian Army on 4^th day of July 1983, as a cadet and rose through the ranks to the position of Major General. I was serving at the Army Headquarters, Nigerian Army Resource Centre, Mambilla Barracks Junction, Off Maitama Avenue, Asokoro, Abuja, before my purported compulsory retirement on the 9^th of June, 2016.

4. That I have served the nation and the Nigerian Army meritoriously and with distinction for close to 33 years and still have a little over 2 years to serve in the Nigerian Army before my official retirement age and about 3 years left before the mandatory retirement age of 56 years for an Army Major General of my rank.

5. That in the course of my rendering my services to my fatherland, I was engaged in war as a Lieutenant, in 1990, in Liberia, when I was so ordered by the Nigerian Army. I was also in 1992, as a Captain once again engaged in the war in Liberia, when also ordered by the Nigerian Army, in which instance I suffered battlefield injury. Equally and in the line of duty, I was again engaged in battle and served in Darfur as both Sector South Commander, for the United Nations, as well as the Commander, Nigerian Contingent, in Darfur. In both cases, I distinguished myself with letters of commendation. Lastly, I served as Director of Operations from 28^th December, 2014, to 18^th May, 2015, during which period I exposed myself to the greatest risk of my life, fighting the boko haram insurgents.in the North Eastern part of Nigeria. With my troops, I make bold to state that we were instrumental to the recovery of over 14 Local Governments in Borno State, between January 2015 and 18^th May, 2015, which made the presidential elections possible in those areas, before I was redeployed to the Defence Headquarter and later to Nigerian Army Resource Centre, Mambilla Barracks Junction, Off Maitama Avenue, Asokoro, Abuja. All the aforesaid battle field experiences were at grave personal risk to my life, in the course of serving my fatherland.

6. That on Friday, 10^th June, 2016, at about 11:12pm, while at work, I got a text message from one Lt. Col. S. O. G. Aremu, Staff Officer to the Military Secretary in charge of recruitment, deployment, appointment, etc., asking me to call him. I called him and he informed me to my shock and chagrin that he was told to convey to me the Military Secretary’s message, that, the Army Council which sat on 9^th June, 2016, had retired me. He requested to know how to deliver my letter of retirement to me and I told him I would come and collect it myself.

7. That I thereafter proceeded to the office of the Military Secretary, Major Gen. Garba M. Hong, where I was handed a letter dated 9^th June, 2016, Ref. No. AHQ MS/GI/300/226, titled, “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304),” signed by the Military Secretary, Major General Garba M. Hong. A copy of the letter is herewith attached and marked as Exhibit INI 1.

8. That the letter, Exhibit INI 1, has it that the Army Council at its meeting of 9^th June, 2016, approved my compulsory retirement from the Nigerian Army, with effect from 9^th 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), which provisions are to the effect that my purported compulsory retirement was on disciplinary grounds, i.e., serious offence(s). A copy of the said Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 (Revised), is herewith attached and marked Exhibit INI 2.

9. That upon enquiry from the Military Secretary as to the reason for my compulsory retirement, at the twilight of my career and without any blemish in my records so far, he referred me to the Section for serious disciplinary matters as contained in the Armed Forces Act. Cap A20, Laws of the Federation of Nigeria.

10. That at the time of my purported retirement, on 9^th June, 2016, I had put in 32 years, 11 months and 5 days, of meritorious service in the Army, in service to my fatherland.

11. That I verily believed that there was no justifiable reason(s) for my early compulsory retirement as I have not attained the mandatory retirement age for Major Generals in the Army, which is 56 years, as I am only 53 years by 12^th June, 2016, and have only served for 32 years, 11 months and 5 days, as against the mandatory 35 years service age for retirement as provided for by Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the Military, which I have not attained.

12. That it was widely reported in the print and electronic media and as affirmed by the Army Authority, that the reasons and/or grounds for the mass sack or retirement of Senior Military officers from the Army, in which exercise I was purportedly involved, was either based on having attained the retirement age or rank, indictment and or complicity in the Arms Scandal and Election Panel Reports, and which in my case was said to be on disciplinary grounds, i.e., serious offence(s). Attached herewith are certified true copies from the National Library of newspaper publications narrating my said retirement and the alleged reasons and circumstances surrounding same, to wit:

1. Leadership Newspaper of Saturday, June 11, 2016, at Page 5, headed, “Army Retires Senior Officers” marked as Exhibit INI 3,

2. The Nation Newspaper of Sunday of June 12, 2016, at page 4, headed, “Tension as Army Council retires 35 Officers”, marked as Exhibit INI 4.

3. Sunday Vanguard of June 12, 2016, at page 6, headed, “Shock as Army fires 200 Officers” marked as Exhibit INI 5.

4. Sunday Punch of June 12, 2016, at page 2, headed, “Army sacks Jonathan, Yar’Adua’s ex-ADCs, 58 others” marked as Exhibit INI 6.

5. New Telegraph of June 13, 2016, at pages 1 and 2, headed, “Arms scandal: Air Force to retire AVMs, Commodores marked as Exhibit INI 7.

6. The Punch Newspaper of Tuesday, June 14, 2016, at page 9, headed, “Retired soldiers indicted for corruption”, marked as Exhibit INI 8.

7. Vanguard Newspaper of Tuesday, June 14, 2016, at page 5, headed, “Retirements: Army, 38 officers in war of words”, marked as, Exhibit INI 9.

8. New Telegraph Newspaper of Tuesday, June 14, 2016, at page 7, headed, “Buratai defends mass retirement”, marked as, Exhibit INI 10.

9. The Guardian Newspaper of Tuesday, June 14, 2016, at page 3, headed, “Sacked officers ‘professionally corrupt’ says Defence Minister”, marked as, Exhibit INI 11.

10. Daily Sun Newspaper of Wednesday, June 15, 2016, at page 6, headed, “Reasons Army sacked 38 officers”, marked as, Exhibit INI 12.

11. Daily Trust Newspaper of Sunday, June 19, 2016, at pages 11 and 12, headed, “Why we were retired, Army Officers speak”, marked as, Exhibit INI 13.

13. That in a Press Release by the Army Spokesman, Col. S. K. Usman, he stated that the retirement was done to purge the Nigerian Army of corrupt officers indicted by either the Presidential Arms Panel, or the Election Petition Panel.

13. That the Minister of Defence, corroborating the statement of the Army Spokesperson, also reiterated and was quoted on the pages of The Punch Newspaper of 14^th June, 2016, The Guardian of 14 June 2016 and New Telegraph of 14 June 2016, as follows: “Retired Officers indicted for corruption”, “Sacked officers professionally corrupt” and “We fired 38 officers over corruption, misconduct”.

13. That I have never held any appointment that exposed me to any political inducements on the arms deal or the Election Panel Indictment.

14. That I was never indicted by the Presidential Arms Panel and/or any Election Panel. I was never invited by any of them before, during and/or after their sittings and never testified before them or any other investigative panel on elections and arms deal set up by the Nigerian Army, or any other body or agency of government before my purported compulsory retirement from the Nigerian Army on alleged grounds of serious offence(s).

13. That a great deal of harm has been done to my reputation and meritorious service spanning 33 years of my whole life. That I have been defamed, stigmatized, labelled a corrupt officer, victimized and traumatized by this sack and so is my family, when there was absolutely no basis and justifiable reason(s) for same.

13. That aggrieved by the action of the Army Council to compulsorily retire me from service and having reached the decision after a thorough soul searching and appraisal of the entire sad circumstances of this case, and fully convinced that there was no basis for my compulsory retirement, I briefed the law firm of Mike Ozekhome’s Chambers, headed by Chief Mike A.A. Ozekhome, SAN, as to my predicament.

13. That at a meeting on the review of this case held with Chief Mike A. A. Ozekhome, SAN, at his office, Ukwe Court, No 27, Jesse Jackson Street, Asokoro Extension, Abuja, on Wednesday, 13^th July, 2016, at about 4.00p.m, I was informed by the said Chief Mike Ozekhome, SAN, of the following and I verily believe him to be true, as follows:

1. That he has closely studied the letter dated 9^th June, 2016, Ref. No. AHQ MS/GI/300/226, titled, “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304),” (Exhibit INI 1), and noted particularly, the grounds upon which my purported compulsory retirement from the Nigerian Army, which was to take effect from 9^th June, 2016, was based.

2. That he has also closely studied the provisions of the Harmonized Terms and Conditions of Service for Officers 2012 (Revised), particularly Paragraph 09.02c (4) (Exhibit INI 2), thereof, the section cited for my compulsory retirement which is said to be on disciplinary grounds, i.e. serious offence(s).

3. That he has further closely studied the provisions of the Armed Forces Act. Cap A20, Laws of the Federation of Nigeria, (Exhibit INI 3), particularly Part XII thereof, being the provisions dealing with offences, Part XIII thereof, being the provisions dealing with punishment and Part XIV thereof, dealing with trial procedure.

4. That he has observed from the above statutory provisions that the disciplinary process for an officer of my cadre is as follows:

1. An offence alleged against a high ranking serving military personnel like me, who is subject to service law, will first be reported on a chart called Charge Sheet AFB 252. This is when disciplinary procedure is said to commence.

2. That as a Major General in the Nigerian Army, I can only be tried by a General Court Martial of any alleged offence(s) and cannot be tried summarily, which is a trial reserved for officers of lower rank in the Military.

3. That the second component of the trial, is trial by Court-martial, which allows one representation to defend himself by Counsel of his choice, underscoring fair hearing.

4. That when the proceedings take place, the Court returns a verdict and gives a sentence.

5. That a Record of Proceedings is compiled and transmitted, with the verdict, to Army Council, for ratification.

6. That the process will not be adjourned or be complete until the verdict has been taken before the Army Council, which could confirm the sentence, reduce it, review it, or even increase or dismiss same.

7. That it is after these procedures that the verdict comes into full effect

13. That I know as of fact that none of the steps enumerated above was followed at all by any court of competent jurisdiction or any Court Martial, set up to try me before my purported compulsory retirement by the Army Council, based on the very section they relied on, but which they failed to observe.

13. That I never saw nor was given any charged on the prescribed Form AB 252, which is the means of reporting an offence against a service personnel. I was never tried in any court of competent jurisdiction. No sentencing or verdict was pronounced against me, and the Army Council was never handed the records of proceedings for review or confirmation of any verdict passed on me. That I know as of a fact that there was no basis for the Army Council to have approved my compulsory retirement, citing disciplinary grounds.

13. That I know as of fact that all the actions of the Army Council in this instance are a negation of the law and Rules of Procedure (ROP).

13. That I was totally shocked to have been purportedly retired without any notice, query, trial, query, arraignment, court-martial, or even warning under the Section that was purportedly relied upon for my compulsory retirement.

13. That I have since the 15^th of June, 2016, petitioned the President, Commander in Chief, President Muhammadu Buhari, about this grave injustice meted out to me.

13. That till date, nothing has been said by the President nor any action taken to address the issue of my wrongful compulsory retirement.

13. That I have been dressed in the dirty garb of a criminal since the news of my purported compulsory retirement was made public, and have been inundated with numerous telephone calls, text messages, emails, letters etc, from home and abroad from people who were equally embarrassed by the publications, about my alleged conducts and subsequent compulsory retirement.

13. That my family and I have been greatly traumatized by the news of my compulsory retirement based on allegations of non-existent serious offences I never knew about or took part in.

13. That it will be in the best interest of justice that my reliefs be granted.

13. That I depose to this affidavit in good faith, conscientiously, believing same to be true, and correct, and in accordance with the Oaths Act, Laws of the Federation of Nigeria, 2004.

…….………………

DEPONENT

Sworn to at the National Industrial Court of Nigeria

Registry, Abuja, this ……. day of July, 2016.

BEFORE ME

COMMISSIONER FOR OATH

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO: ………………..

BETWEEN

MAJOR GENERAL IJIOMA NWOKORO IJIOMA —– CLAIMANT

AND

1. NIGERIAN ARMY

2. MINISTER OF DEFENCE

3. CHIEF OF DEFENCE STAFF …………… DEFENDANTS

4. CHIEF OF ARMY STAFF

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

INTRODUCTION

1. The Claimant feeling aggrieved by the way and manner he was compulsorily retired from the Nigerian Army, brought this Originating Summons seeking for the determination by this Honourable Court the questions set out therein, and upon the determination thereof, prayed this Honourable Court for the reliefs contained therein.

2. The Originating Summons is supported by an affidavit of 29 paragraphs deposed to by the Applicant himself. Attached to the affidavit are 13 Exhibits variously marked as Exhibits INI 1 to Exhibit INI 13.

Exhibit INI 1, is a copy of the letter purportedly retiring the Claimant dated 9^th June, 2016, Ref. No. AHQ MS/GI/300/226, titled, “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304).”

Exhibit INI 2, are extracts of the relevant pages of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 (Revised).

Exhibit INI 3, is a certified true copy of Leadership Newspaper of Saturday, June 11, 2016, at Page 5, headed, “Army Retires Senior Officers”.

Exhibit INI 4, is a certified true copy of The Nation Newspaper of Sunday of June 12, 2016, at page 4, headed, “Tension as Army Council retires 35 Officers”.

Exhibit INI 5, is a certified true copy of Sunday Vanguard of June 12, 2016, at page 6, headed, “Shock as Army fires 200 Officers”.

Exhibit INI 6, is a certified true copy of the Sunday Punch of June 12, 2016, at page 2, headed, “Army sacks Jonathan, Yar’Adua’s ex-ADCs, 58 others”.

Exhibit INI 7, is a certified true copy of New Telegraph of June 13, 2016, at pages 1 and 2, headed, “Arms scandal: Air Force to retire AVMs, Commodores”.

Exhibit INI 8, is a certified true copy of The Punch Newspaper of Tuesday, June 14, 2016, at page 9, headed, “Retired soldiers indicted for corruption”.

Exhibit INI 9, is a certified true copy of Vanguard Newspaper of Tuesday, June 14, 2016, at page 5, headed, “Retirements: Army, 38 officers in war of words”.

Exhibit INI 10, is a certified true copy of New Telegraph Newspaper of Tuesday, June 14, 2016, at page 7, headed, “Buratai defends mass retirement”.

Exhibit INI 11, is a certified true copy of The Guardian Newspaper of Tuesday, June 14, 2016, at page 3, headed, “Sacked officers ‘professionally corrupt’ says Defence Minister”.

Exhibit INI 12, is a certified true copy of Daily Sun Newspaper of Wednesday, June 15, 2016, at page 6, headed, “Reasons Army sacked 38 officers”.

Exhibit INI 13, is a certified true copy of Daily Trust Newspaper of Sunday, June 19, 2016, at pages 11 and 12, headed, “Why we were retired, Army Officers speak”.

3. This written address is in support of the Originating Summons.

BACKGROUND FACTS

4. The Claimant relies on the facts as contained in the affidavit in support as the background facts to this application. We shall also rely on the Exhibits attached therein.

ISSUES FOR DETERMINATION

1. Flowing from the questions set for determination the Applicant respectfully submits the following issues for the determination of this Honourable Court, to wit:

0. 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 9^th June, 2016, titled, “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, (the Applicant herein).

1. 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 9^th June, 2016, titled “COMPULSORY RETIREMENT NA OFFICER MAJOR GEN. IJIOMA NWOKORO IJIOMA (NA/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.

0. 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 9^th June, 2016, followed due process, and same can be said to be justified in the circumstances.

0. Whether having regard to the extant provisions of the Armed Forces Act, Cap A20, particularly Part XIII 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 9^th 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.

1. 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 9^th 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.

0. 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 Section 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 9^th 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.

0. 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.

1. Whether the Claimant is entitled to the reliefs sought upon the declaration of this Honourable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case.

SEQUENCE OF ARGUMENT

6. Since the questions submitted for determination are woven around the purported compulsory retirement of the claimant viz-a-viz the interpretation to be given to certain provisions of the Constitution of the Federal Republic of Nigeria, 1999, as altered, the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, the Harmonised Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012, as revised, our argument in respect of them would expectedly overlap. Arising from this, the Applicant shall proffer argument to questions 1 to 7 submitted for determination together, and then argue question 8 separately.

6. This accords with the position held by the apex court in the case of Ekeagwu v. Nigerian Army (2010) 16 NWLR (Pt 1220) 419 at p. 429, paras F – G, where his Lordship, Onnoghen, JSC, on the primary issues for determination in a case of wrongful termination, held:

“It is important to remind us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are (1) Whether the termination/dismissal/retirement of the plaintiff is wrongful, and (2) What is the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful.”

ARGUMENT

6. It is our humble submission and we respectfully urge this Honourable Court to so hold, that the purported compulsory retirement of the Applicant from the services of the Nigerian Army, vide letter dated 9^th June, 2016, is illegal, unlawful, wrongful, unconstitutional, null and void, having regards to the provisions of Section 36(1)(4) of the Constitution of the Federal Republic of Nigeria, (CFRN) 1999 as altered, the provisions of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, (AFA), the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, and other extant statutory provisions regulating the claimants appointment e.g. the Public Service Rules, 2008.

6. It is the case of the Claimant that the purported compulsory retirement from the services of the Nigerian Army, vide letter dated 9^th June, 2016, did not follow the due process of law for compulsory retirement on disciplinary grounds, i.e., serious offence(s).

1. My lord, the letter dated 9^th June, 2016, (Exhibit INI 1), conveying to the Claimant his purported compulsory retirement from the services of the Nigerian Army, stated unequivocally in paragraph 1 thereof, that the said purported compulsory retirement was made pursuant to the provisions of Paragraph 09.02c(4) of the HTACOS, 2012 (revised) with effect from 9^th June, 2016, having served the Nigerian Army for 32 years, 11 months and 5 days.

1. My Lord, the grounds upon which the purported compulsory retirement of the claimant is said to be based as contained in Paragraph 09.02c(4) of the HTACOS 2012, (revised), provides thus:

“09.02 compulsory retirement or resignation may be effected for the following reason(s):

3. An officer may be compulsorily retired from service by the Army Council/Navy Board/Air Force council for any of the following specific reasons:

4. On disciplinary grounds i.e serious offence(s).”

2. Flowing from the above statutory provisions of the HTACOS, “serious offence(s) is stated to be the ground upon which the Claimant’s purported retirement was based. This presupposes that there has been a serious offence(s) allegedly committed by the Claimant, contrary to any of the provisions of the AFA, particularly Part XII, spanning Sections 45 to 114 thereof, and after following the due process of law, which involves arrest, trial and conviction of the Claimant and arriving at the irresistible conclusion that the Claimant is actually guilty of the alleged offences(s). Thus, the Army Council as the final arbiter on such issues, is left with no choice but to compulsorily retire the claimant.

3. This however, my Lord, is not so, as there was no charge whatsoever, no arrest of the Claimant, no arraignment before a Court Martial, or any regular court of competent jurisdiction. No trial procedure whatsoever was conducted, no hearing, and no conviction leading to the final confirmation by the Army Council to compulsorily retire the Claimant or person concerned.

4. The grounds for the claimant’s purported compulsory retirement being criminal in nature, is expected to have followed due process of law. On the effect of compulsory retirement of a civil servant without recourse to the rules guiding his employment, the Court of Appeal in the case of Nawa v. Attorney General Cross River State (2008) All FWLR (Pt 401) 807 at 831, para 3 B – D, held thus:

“Compulsory retirement of a civil servant compels the inference that the civil servant is being subjected to disciplinary action for the commission of any crime or misconduct. In the instant case, there is no evidence that he committed any crime, offence or misconduct. If any disciplinary action is to be taken against him, it must be in full compliance with the relevant statute, rule or regulation. See Iderima v. R.S.C.S.C (2005) All FWLR (pt. 285) 431, (2006) 7 WRN 11; Shitta-Bey v. Federal Public Service Commission (1981) ISC 40.”

5. It is not in contention that by the provisions of Paragraph 09.02c of the HTACOS 2012, as revised, the Army Council has the authority to compulsorily retire the Claimant on any of the grounds contained in paragraph 09.02 of the HTACOS.

6. It is submitted however, that, in carrying out this disciplinary actions against the Claimant, it must be in full compliance with the relevant statutes, rules or regulations regulating his appointment, as held in the Nawa v. Attorney General Cross River State case (supra).

7. My Lord, considering the fact that the grounds for 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. This was the decision of the apex court in the case of P.H.M.B. v. Ejitagha (2000) 11 WRN 1 at 6; (2000) 11 NWLR (Pt. 677) 154 at 160, where his lordship Uwaifo, JSC, held:

“I think this legal faux pas must be corrected at once: to force a public servant into retirement, that is before he gets to his retirement age is an unusual action against him in his career. Such an action could admittedly be due to a variety of reasons including ill health redundancy, reorganization retrenchment, unproductively etc, or even upon contractual or regulatory powers conferred on and exercised by the employer. When an employer relies on one or more of these reasons, he would be expected to have facts or the law in support. The burden is on him to satisfy the court on this. To place the burden of proof wrongly on a party will usually lead to a miscarriage of justice. This is because the Judge’s opinion will normally be weighed unjustly on relevant issues against such a party. See Onobruchere v. Esigene (1986) NWLR (pt 19) 799; (1986) 2 S.C. 385.” (Underlined for emphasis).

See: Sasegbon Laws of Nigeria, Vol. 18, para 619, p 278.

8. Flowing from the decision of the apex court in the above case, it is respectfully submitted that, in the circumstances of this case, it is expected of, and the burden is on the Army Council who had relied on disciplinary grounds, i.e, serious offence, as the basis for the compulsory retirement of the Claimant, to adduce facts or state the law in support of its position, and show that it had followed due process before arriving at the decision to compulsorily retire the Claimant.

9. We had earlier submitted that any retirement based on serious allegation of having committed a crime or offence(s) must be in full compliance with the relevant statutes, rules or regulations. See Nawa v. A. G. Cross River State (Supra).

2. For any of the offences provided for in Part XII, spanning from sections 45 to 114 of the AFA, Cap A20, there are various punishments to be meted out to such an officer as provided for by Part XIII, spanning from sections 115 to 120 of the AFA. The trial procedure for a person subject to service law under the AFA, is as prescribed by Part XIV, spanning from section 121 to 146 of the AFA; post-trial procedure is provided for by Part XV, spanning from section 147 to 182. Appeals from court martial are as provided for by Part XVI, spanning from section 183 to 202 of the AFA.

   1. For an officer in the cadre of the Claimant, the disciplinary procedure for any offence alleged to have been committed by him, in a nut shell, is as stated below:

1. Disciplinary procedure against a serving officer in the cadre of the Claimant, subject to service law, alleged to have committed a serious offence, in breach of the provisions of the AFA, is that the offence will be reported in a chart called charge sheet AFB 257, which is to be served on the Accused. This is when disciplinary procedure is said to commence

2. The second component stage is the setting up of a Court Martial to try the officer who is alleged to have committed the offence. 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. See Section 129 – 142 of the AFA.

3. Where the proceedings take place, the Court Martial returns a verdict and gives a sentence subject to confirmation by the Armed Forces Council. See Sections 140, 141, 152 (b) AFA.

4. The record of proceedings is compiled and transmitted with the verdict to the Army Council for ratification.

5. The process will not be adjourned or be complete until the verdict is taken before the Army Council which could confirm sentence, reduce it, review it or even increase it or dismiss it.

6. It is only after this that the verdict comes into full effect.

7. Appeals from the decision of the court martial lie to the Court of Appeal. See section 183 AFA.

2. My Lord, whereas the Claimant was purportedly retired on disciplinary grounds, i.e, serious offence(s), non of the procedural steps enumerated above was followed by the setting up of a Court Martial to try the Claimant. No trial whatsoever was conducted, and no hearing whatsoever granted the Claimant, whether before any Court Martial or the Army Council that proceeded to compulsorily retire the Claimant on disciplinary grounds, i.e serious offence(s).

3. It is respectfully submitted 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 making its findings known to the Army Council, constitute a gross violation of the Claimant’s right to fair hearing.

4. The apex court in Zakari v. Nigerian Army and Anor (2015) LPELR – 24721 SC, pp 24 – 35, paras B – F, per Odili, JSC, took time out to explain when a Court Martial shall be constituted, and the effect of a Court Martial not properly constituted or composed. Having regards to the purport of the ratio in this case, and it’s relevance to the present case, permit us sir, to quote extensively, from the judgment. She held:

“At the root of this appeal is the jurisdiction of the trial Court Martial which the Appellant contends was ousted with the disqualification of one of the members of the panel, a point disagreed with by the Respondents. On this point therefore, a journey in time into the case of Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587 would be helpful where Bairamian FJ stated what has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate. The Court held thus: That a Court can only be competent when: 1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. From the guide proffered by Madukolu (supra), the question that crops up is if the Special Court Martial with the requirement of competence or jurisdiction in view of the first condition which if the Court was properly constituted and no member is disqualified for one reason or the other. In seeking to provide an answer, the Respondents are of the view that the case of Agbiti v Nigerian Navy (2011) 4 NWLR (Pt.1236) would not be available to the Appellant in a way to get a favourable answer on his behalf as the facts herein are distinguishable. A reference to Section 133 (1) of the Armed Forces Act is hereby made which provides as follows:- Section 133 (1): “Where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused”. Also of note is the argument of the Respondents that the Appellant had opportunity in keeping with Section 137 of the Armed Forces Act to raise an objection before the commencement of the trial and he had none and the trial was started and completed and so cannot now want to harp on the constitution of the panel of judges at the trial court to have the judgment set aside. To this argument, I shall refer to the stand of this court on such a proposed estoppel or waiver to a discourse on jurisdiction at the appellate court even at the Supreme Court in such circumstances. The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346; a judgment of this Court per Niki Tobi JSC as he stated:- “Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Noncompliance with the rules which affect the very foundation, or props of the case/cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of assistance to the adverse party. The defence of waiver lacks merit and I so hold”. From a clearer view of what we are grappling with, I shall quote the salient parts of the judgment of the Court below which is thus at pages 262, 268 – 269 of the Record as follows:- “I shall reproduce verbatim the argument of the learned counsel for the Appellant on issue one as follows:- “We humbly submit that the special Court Martial that tried and sentence (sic) the Appellant lacked jurisdiction on account of improper constitution. Contrary to the provisions of the Armed Forces Decree No. 105 of 1993, one of the officers Captain E.D Bashir junior officer to the Appellant sat on the tribunal that tried and convicted the Appellant without satisfying certain conditions precedent i.e. obtaining the consent of a superior before constituting the special Court Martial. It is our submission that failure to satisfy the condition precedent robs the special Court Martial of jurisdiction to try the Appellant which goes to the root of this finding”. “That was all as far as issue one is concerned”. “The complaint of the Appellant has to do with Section 133(b) which states:- 133(b): Where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused”. The tragedy of this issue is that, apart from the argument of learned counsel for the Appellant in their brief that Captain I. D. Bashir, a member of the court was lower in rank to the Appellant, there is no evidence to support this. As was observed by learned counsel for the Respondent, both the Appellant and I.D. Bashir are all captains and that being the case, there is no breach of Section 133 (b) of the Act. At the Court below, this issue was never raised. It only surfaces in the brief of the Appellant. How does the Appellant expect this court to verify whether Captain I.D. Bashir was a junior to him or not, especially when the Respondent also asserts that they are equal in rank? I need not waste more time on this issue, as the Appellant appears not to have been serious in putting forward his case on this issue. Without anything to the contrary, I think the Court Martial was properly constituted having regard to Section 150 of the Evidence Act. Issue one therefore does not avail the Appellant at all (underlining ours)”. Situating the facts of this case including the findings and decision of the two Courts below and asking if the case of Agbiti v Nigerian Navy (2011) 4 NWLR (Pt.175) is relevant. I shall quote Adekeye, JSC for guidance. It was stated thus:- “The law on the effect of any General Court – Martial not properly constituted had long been well settled by this Court in the case of State v. Olatunji (2003) 14 NWLR (Pt.839) 138 at 161 where Kalgo JSC said:- “Any General Court-Martial which is not convened as required by the provisions of the Armed Forces Act is just like a Court or Tribunal which is not properly constituted”. This decision is in line with the decision of this Court in the case of Modukolu & Ors v Nkemdilim & Ors (1962) 2 SCNL 341 at 348 where the court specified conditions to be satisfied before any Court of Law can exercise jurisdiction. These conditions include – (a) That the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another. (b) That the subject matter of the case is within the Courts jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. (c) That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence of court is fatal to its jurisdiction because the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. See also Tukur v Governor of Gongola State (1989) 4 NWLR (Pt.117) 513 and Alade v Alemuloke & Ors (1938) 1 NWLR (Pt.89) 201 at 204. It is quite clear that one of the requirements that must be satisfied before any Court can exercise jurisdiction is that the Court must be properly constituted as regards members and qualifications of the members such that no member of the Court is disqualified from being a member of the Court having regard to the provisions of the statute establishing the court. The provisions of the statute establishing the Court of the General Court – Martial dealing with the constitution of the Court are Sections 129 and 133 of the Armed forces Act Cap A20 Laws of the Federation 2004 where sub-Sections (1), (2) and (3) of Section 133 state – 133: (1) Subject to the provisions of Sections 128 and 129 of this Act, a Court-Martial shall be duly constituted if it consists of the President of the Court-Martial, not less than two other officers and a waiting member. (2) An officer shall not be appointed to be a member of a Court- Martial unless he is subject to service law under this Act and has been an officer in any of the services of the Armed Forces for a period amounting in the aggregate to not less than five years, (3) The President of a Court-Martial shall be appointed by order of the convening officer and shall not be under the rank of Major or corresponding rank, unless in the opinion of the convening officer, a major or an officer of corresponding rank having suitable qualifications is not, with due regard to the Public Service, available, so however that – (a) the President of a Court-Martial shall not be under the rank of a Captain or a corresponding rank; and (b) Where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused. It is very clear from the provisions of sub-Sections (3xb) above that the constitution of the General Court Martial to try the Appellant shall not contain or include any officer who is junior in rank in terms of seniority in the Armed Forces to the Appellant. Therefore, once it is established that one or more of the members of the panel of the General Court Martial to try an officer in the Armed Forces for any offence is or are juniors in rank and seniority to the officer to face trial before the panel of the General Court Martial, the panel becomes improperly constituted and thereby deprived of the jurisdiction to try the officer for any offence under the Armed Forces Act. Therefore, as the General Court Martial in the present case was not properly constituted to try the Appellant, its proceedings and judgment convicting the Appellant of the offences he was charged with, are a nullity”. To get back on track, what is at play is whether or not there was jurisdiction in the Court Martial to try and determine the case against the Appellant. The undisputed facts are:- 1. the panel was made up of Lt. Col. S. O. Olojede (N/6183) President, Major M. I. Uzzi (N/6713) member, Captain J. M. Aboki (N/7958) member, Captain LD. Bashir (N/9493) member. 2. The Appellant’s number was N/9043 which no doubt places Appellant senior to I. D. Bashir. 3. The defect of this composition was not raised by the Appellant at the trial but by counsel at the Court of Appeal in appellant’s Brief of Arguments. 4. The Court of Appeal remarking on the jurisdictional point raised in that Appellant’s Brief of Argument dismissed it with ease on the ground that the Constitution of the Court Martial was properly made. These facts now taken within what is now trite on when a court is properly constituted and when jurisdiction resides in a court or is absent, I would say that this case presents a face akin to what this Court was faced with in the Agbiti case (supra). This Court had stated clearly that the composition of members of the Court is a condition precedent imposed by statute and the non-compliance with the provisions of Section 133 of the Armed Forces Act strips the Tribunal of competence and so where the Court Martial lacks jurisdiction to try the appellant, all the proceedings in the trial and the verdict automatically come to naught. In the Agbiti case, two members were junior to the Appellant and that led to the incompetence of the Court. In this instance, one member is junior to the Appellant which in my humble view would suffer the same fate as the law made it clear that just one member who is junior would suffice to scuttle both the Court Martial and all its proceedings. There is no distinguishing feature between the case in hand and that of Agbiti v. Nigeria Navy (supra) as the Madukolu v. Nkemdilim (supra) had offered the earlier guide on both the matter of a member disqualified would affect fundamentally the competence and jurisdiction of the court and the matter of appropriate composition being a condition precedent which must be fulfilled without exception and in this instance that failure is fatal. It is in the light of the above that the Respondents positing that the Appellant not availing himself of the provisions of Section 137(1) to (5) of the Armed Forces Act at the Special Court Martial is now forever estopped from raising the issue is too hard a pill to swallow. That Section provides thus:- “137 (1) – An accused about to be tried by a Court Martial shall be entitled to object, on any reasonable grounds, to any member of the Court-Martial or the waiting member whether appointed originally or in lieu of another officer”. The Respondents anchoring on Section 137 (1) of the Armed Forces Act and Appellant’s failure to utilise same for the appeal to be favourably determined in Appellant’s favour would not fly. The reasons have already been stated but at the risk of repetition I would adopt the Court of Appeal decision in Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt.647) where the Appellant, a Major in the Nigerian Army was tried by a panel consisting of, inter alia, two Captains who were below his rank and when asked in compliance with Section 137 of the Act whether he objected to the constitution of the panel, he answered in the negative and the Court Martial went on and thereafter convicted him. On appeal to the Court of Appeal and the matter of a defective composition based on those two juniors was raised by Appellant’s counsel, the Court of Appeal per Adamu JCA held: “The failure of a party to raise an objection at a court martial as to the membership of unqualified officers on the court martial is not a bar, waiver or an estoppel for the said party to raise objection to the jurisdiction of the court martial on appeal. This is in line with the principle that a party cannot by consent or otherwise confer jurisdiction on a court where the Court has no jurisdiction to entertain the action. In the instant case, the contention of the Respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, has waived his right to subsequently complain or he has thereby conferred on the said court martial, the jurisdiction that it did not have, has no substance in law”. The 2nd Respondent had raised the point that though Captain I.D Bashir was junior and therefore disqualified, the fact that in keeping with Section 129 (b) of the Armed Forces Act 2004 the quorum was in order with the president and two other members, the competence of the Court was not impugned. That argument, in my view, would not stand in the light of what is required for the jurisdiction of a court property constituted as has become trite, that is, once a member is disqualified and the panel or court goes on with the proceedings, everything done by that Court would collapse as the disqualification of anyone or more members renders the entire court incompetent and without jurisdiction. Section 133 of the Armed Forces Act so provided and the cases of Madukolu v Nkemdilim (supra); Agbiti v. Nigerian Army (supra) have ensured the mandatoriness of the compliance and not those defects that are redeemable or could be waived or treated as a mere irregularity not going to the root. Before I conclude, I must say, this is one of those instances where the Supreme Court or an Appellate Court so positioned can intervene and disturb the concurrent findings and conclusions of two courts below. The reasons herein are that there has been a violation of some principles of law and procedure which have created a miscarriage of justice and so leaving me no option than to chart a different route. I rely on Alhaji Ganiyu Martins v. Commissioner of Police (2012) 12 MJSC (Pt.11) 73 at 93-94.”

5. The Court of Appeal in the case of Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt 647) p 77, per Adamu, JCA, at pp 25 – 32, paras E – C, held that the Court Martial which had as its member two Captains who were below the rank of the accused person/Appellant were not qualified to be appointed or take part as members of the Court Martial, and consequently declared the said composition as illegal.

6. The above two instances my Lord, of the apex and intermediate courts, were in cases where the Court Martial was even constituted, sat and presided over the trial of the accused, yet the courts still held that the presence of the unqualified Captains and two colonels respectively, robbed the courts of jurisdiction to hear and undertake the proceedings.

7. On the nature and structure of a General Court Martial, the Court of Appeal in the case of Samual v. Nigerian Army (2006) LPELR-11751(CA) at pp 36 – 37, paras C – E, held per Awala, JCA, thus:

“It is ad hoc and has to be convened to deal with specific offence(s) by the military personnel against the ordinary law of the land or military discipline. It is a product of the Nigerian Constitution of 1999. For further emphasis, I explain briefly the working of a General Court-Martial. To begin with a court-matrial is usually ad hoc military court convened under the military authority here by the commanding officer, it is usually set up to try someone under the military law accused of violating military discipline as in this case of violating S. 103 (1) of the Armed Forces Decree 1993. The court is now a creation of the constitution and like the High Court it is a court of record and appeal from its decision comes here and then to the Supreme Court. This was not so hitherto during the military regimes in this country when the Supreme military counsel was last bus stop. In Magaji vs. Nigerian Army (2004) 16 NWLR (Pt. 899) 222 Galadima JCA said “By its very nature now a General Court Martial is akin to a jury trial”. It is not presided over by a sole judge as in the High Court, but a tribunal with a presiding officer. The law does not require it judgment that its should be detailed in the manner of a regular civil court. But like the regular civil criminal court the prosecution has the onus under the constitution and other authorities to prove the guilt of the accused beyond reasonable doubt and the burden does not shift. (1) State vs. Danjuma (1997) 5 SCNJ 126 at 136 (2) Ibeh vs. State (1997) 1 NWLR (pt. 484) 632 at 636 (3) Akpan vs. State (1994) 12 SCNJ 140 at page 142 (4) Oguntolu vs. State (1996) 2 NWLR (Pt. 432) 503 (5) And also Section 138 of the Evidence Act Cap E1 2004 (6) And by S. 36(5) of the 1999 Constitution.”

8. The apex court only recently in the case of the Nigerian Army v. Dodo (2012) LPELR – 8288(SC) at p 29, para F, held, per Arinola JSC, on the implication of a court martial being composed of a disqualified member thus:

“Where the court martial is composed of a disqualified member, the court’s jurisdiction would be affected adversely the entire proceedings embarked upon thereafter will amount to nullity.”

9. In Major Bello M. Magaji v. the Nigerian Army (2008) LPELR 1814(SC), his lordship, Ogbuagu, JSC, on who may convene a General Court Martial, held:

“By virtue of Section 131 (2) of the Armed Forces Act, a General Court Martial may be convened by:

1. The President; or

2. The Chief of Defence staff; or

3. The Service Chiefs; or

4. A General Officer Commanding or corresponding command; or

5. A Brigade Commander or corresponding command. Onyeukwu v. State, (2000) 12 NWLR (pt 681) 256.”

3. In Adebayo v. Nigerian Army and Anor (2012) LPELR – 7902 (CA), Danjuma JCA, at p 25, paras C – F, held, on whether a Court Martial and Army Council constitute court, thus:

“A Court Marshal and the Army council are the likes of courts under the provisions of section 5 of the 1999 Constitution. See Brigadier General Gabriel Anyankpele v. Nigerian Army (2000) Criminal Law Reports of Nigeria 264 at page 285 – 287. In the case aforementioned, this court at the Lagos Division held thus at page 282 per Aderemi, JCA, in his leading judgment, “the General Court Marshal and the AFJA are the likes of courts envisaged by section 6(5) (g) of the Constitution …as I have said both the General Court Marshal and AFAC derive their legal force from the constitution.”

1. The Supreme Court further, in the case of Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 175), per Adekeye, JSC, held thus:

“The law on the effect of any General Court Martial not properly constituted had long been well settled by this court in the case of State v. Olatuji (2003) 14 NWLR (pt 839) 138 at 161 where Kalgo, JSC said:- “Any General Court martial which is not convened as required by the provisions of the Armed Forces Act is just like a court or Tribunal which is not properly constituted.” This decision is in line with the decision of this court in the case of Maduko v. Nkemdilim and or (1962) 2 SCNL 341 at 348 where the court specified conditions to be satisfied before any court of law can exercise jurisdiction. These conditions include –

1. That the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another.

2. That the subject matter of the case is within the courts jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction

3. That the case comes before the court initiated by due process of law and upon fulfillment of any conditions precedent to the exercise of jurisdiction. Any defect in competence of court is fatal to its jurisdiction because the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. See also Tukur v. Governor of Gongola State (1989) 4 NWLR (pt 117) 513 and Alade v. Alemuloke and ors (1988) 1 NWLR (Pt 89) 201 at 204.”

2. It is beyond doubt, that, the General Court Martial and Army Council, by the above plethora decisions of the Appellate Courts, are in the nature of a court, bound by rules of evidence and manifestation of fair trial. The Court Martial has a duty to make its decisions and state how it came by them. Just findings of guilt and sentence would not suffice, as that would fail the test of whether or not it was a judgment so called, so as to enable an Appellant appeal its decision to the Appeal Court. Every finding of a court or tribunal must be based on reasons and the reasons for reaching a particular finding or conclusion definitely be based on facts and failure to do this is fatal. See; Idakwo v. Nigeria Army (2004) 2 NWLR (Pt 857) 249.

3. The above accords with the provisions of the CFRN 1999 as altered which provides in Section 36 (7) thus:

“When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.”

4. On this, the Court of Appeal, in Asake v. the Nigerian Army Council and Anor (2006) LPELR 5427 (CA), per his Lordship Augie, JCA, at pp 25 – 26, para F – A, held:

“Military Courts must remember that appeals against their decisions lie to this court, and the facts and evidential basis for the conclusions reached must therefore be clear on the record to enable an appellate court determine whether or not it had been right in its approach to the case and the conclusion arrived at – see Shekete v. The Nigerian Air Force (2000) 15 NWLR (Pt. 692) 868.”

5. My Lord, the decision of the Army Council, to compulsorily retire the Claimant on disciplinary grounds, i.e, serious offence(s) without even a trial at all, and howsoever, to enable him state his own side of the defence, clearly runs foul of the above cases and Section 36 (4) of the CFRN 1999, as altered, where it expressly provides, that:

“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.

1. The decision further runs foul of the provision of Section 36 (6) of the CFRN, 1999 as altered, as the Claimant was not:

1. Informed promptly in the language he understands and in detail of the nature of any offence allegedly committed by him. For someone subject to service law, in charge sheet AFB 252.

2. He was not given adequate time and facilities to prepare for his defence as the Army Council at its meeting held on 9^th June, 2016, summarily proceeded to compulsorily retire him on disciplinary grounds i.e. serious offence, without any prior trial whatsoever held;

3. He was not allowed to defend himself in person or by a legal practitioner of his choice, before the Army Council which sat on 9^th June, 2016, to summarily proceed to compulsorily retire him on disciplinary grounds i.e serious offence(s).

4. He did not examine in person or through his legal practitioner witnesses (if any) that were called to testify before the Army Council at its sitting of 9^th June, 2016, to summarily retire him compulsorily with effect from 9^th June, 2016, neither was he given the opportunity of calling witnesses to testify on his behalf.

7. My lord, it is clear from the above that the Army Council which sat on 9^th June, 2016, proceeded to arbitrarily arrogate to itself, the status of the accuser, the prosecutor, and that of the judge. This is clearly against all known principles of fairness, as no charge whatsoever of having committed a criminal offence was ever brought to the Claimant’s attention. The venue, date and time of his purported trial (if any), were not disclosed to him and there was no legal representation whatsoever. It is clear that he was tried and pronounced guilty in absentia, by the Army Council, without any hearing at all, let alone a fair hearing. He was not even arraigned at all before a Court Marshal, let alone a faulty and flawed one, as deprecated by the courts in the above cases.

8. Interpreting the role of the Army Council as provided for by Section 152 (b) AFA, the Court of Appeal held in its role in criminal proceedings as the confirming authority in the case of Des Dokubo v. The Nigerian Army (2015) LPELR – 25969 CA, per Nimpar, JCA, p. 37, paras B – C, as follows:

“The Armed Forces Act vests the authority of confirming any sentence passed by a Court Martial on a commissioned officer in the service of the particular council, in this case, the Army Council as per Section 152 (b) of the Act. Therefore, whatever sentence a Court Martial passes, it is still subject to confirmation according to law.”

9. It is a grave misfortune and odious travesty of justice that a commissioned officer of the ’s Caliber who has served his country diligently for decades and subjected himself to grave dangers in defence of his father land, could be subjected to such ignominy of being accused, tried and found guilty summarily by the Army Council at its sitting of 9^th June, 2016, of such grave allegations of serious offence(s) without the offence(s), being first made known to him, or any opportunity being afforded him to put up his defence and state his own side before any Court Martial or the Army Council itself, to which a confirmation of a sentence lies if same has already been passed by the Court Marshal.

4. Akin to the action of the Army Council at its sitting of 9^th June, 2016, wherein it proceeded to compulsorily retire the Claimant on disciplinary grounds, i.e, serious offence(s), is a situation where the Court of Appeal or the Supreme Court itself (God forbid), will proceed to constitute itself into a court of first instance, and in one fell swoop compulsorily retire one of its own on disciplinary grounds, i.e., serious offence, without any hearing whatsoever, whether from the accused or any accuser. May that day never come to pass in the life of the nation and the judiciary, my Lord.

1. The action of the Army Council breaches all known principles of fair hearing that can ever be envisaged. The principle of fair hearing is fundamental to all court procedure and proceedings and this includes all Tribunals and those exercising quasi judicial functions, the Court Martial and Army Council, inclusive. See Section 36 (4) of the CFRN, 1999 as altered.

2. On what fair hearing implies, the Court of Appeal, in the case of Okike v. LPDC and Ors (2005) LPELR-7466 (CA) pp 31 – 32, para G – A, held, per Ba’aba, JCA, thus:

“Fair hearing implies hearing the parties or giving them the opportunity to be heard. In Kotoye v. CBN, (1989) 1 NWLR (pt 98) 419, it was held that rule of fair hearing is not a technical one. It is one of substance; the question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to fair hearing is entitled to be heard before deciding his case had in fact been given an opportunity, of a Fair Hearing.”

3. Speaking along the same line, his Lordship, Oguntade, JSC, in the case of Pam and Anor v. Mohammed and Anor (2008) LPELR – 2895 (CA) at pp 26 – 27, paras F – A, held thus:

“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”

4. The courts have held that the principle is breached where parties are not afforded or given a fair hearing or any hearing at all, as in the present case. This was the decision of the apex court in the case of Ejeka v. State, (2003) LPELR – 1061(SC) p 13, paras A – D, Tobi, JSC, held:

“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the court. Where the case presented by one party is not adequately considered, the affected party, can complain that he was denied fair hearing. Fair hearing is not an abstract that a party can dangle in the judicial process but on which is real and which must be considered in the light of the circumstances of the case. A party who alleged that he was denied fair hearing must prove specific act or acts of such denial and hot a mere agglomeration of conducts which are merely cosmetic and vain.”

5. The Claimant respectfully submits that compulsory retirement on disciplinary grounds, i.e., serious offence presupposes the fact that a offence(s) has/have been committed. Before a decision can be reached to use the sledge hammer of compulsory retirement on the person, he must have been confronted with the offence(s) allegedly said to have been committed by him, then given the opportunity to defend himself before a court, Court Martial, tribunal or any other body carrying out quasi judicial functions and opportunity afforded him to appeal where not satisfied with the outcome of the trial body.

6. My Lord, the Claimant had in his affidavit in support, deposed to the fact that he was never confronted with any charge or allegation of wrong doing, such as to have warranted his compulsory retirement. There was no charge whatsoever, no trial, no Court Martial set up to try him, being subject to service law, no hearing from him or his lawyer, no representation or summons to appear before any tribunal or Court Martial. All that the Claimant ever got to know about the allegation of any offence(s) against him was merely from the content of the letter conveying to him notice of his purported compulsory retirement from the services of the Nigerian Army with effect from 9^th June, 2016. This, my lord, negates the principle of fair hearing and we humbly urge my Lord to so hold.

ON MEASURE OF DAMAGES

7. As held in the case of Ex – Capt Charles C. Ekeagwu v. The Nigerian Army and Anor. (2010) LPELR – 1076 (SC) p 10, para E – G, per Onnoghen, JSC, in an action for wrongful retirement, once the issue of the wrongful retirement is decided, the next issue that calls for determination is the issue of the measure of damages recoverable where the retirement is found to be wrongful.

8. It was held in the case of Saibu v. Kwara State Polytechnic, Ilorin (2008) LPELR – 4524 (CA) per Ogunwuniju; JCA, at page 37, paras B – E, on the effect of the compulsory retirement of a civil servant that was declared void, thus:

“The Appellant is entitled to a declaration that the compulsory retirement was illegal and to …….. four of the claim which is for reinstatement to his former position. In Iderima v. Rivers State GSC. (2005) 7 SC pt 111 pg 135 at 151, justice Edozie, JSC, held thus: “It is settled law that once the dismissal of a civil servant is declared null and void, the effect is that the civil servant was always and still is a civil servant.” Thus as far as the law is concerned, the Appellant has always been in the service of the Respondent and is entitled to all his salary, benefits etc. For reason given above I am of the view that the 3^rd issue should be resolved in favour of the Appellant.”

9. We urge your Lordship, based on the above submissions, to make an order for the reinstatement of the Claimant to the services of the Nigerian Army, and ancillary orders such as will ensure the justice of this case and not render the decision of this Honourable Court void, or as amounting to a pyrrhic victory for the Claimant, who, upon his reinstatement, can be arraigned on trumped up charges and have him dismissed from the service of the Nigerian Army. We so urge your lordship.

5. The Claimant has prayed this Honourable Court for an award of general and exemplary damages, consequent upon to the shame, disgrace, mental agony, phychological torture meted out to the Claimant by reason of the compulsory retirement from the services of the Nigerian Army.

1. On award of exemplary damages, the Court of Appeal, per Owoade, JCA, held in Obinwa v. C.O.P (2007) 11 NWLR (pt 1045) 911 at 426 para F, thus:

“Exemplary damages follow the cause. Where there is no cause, there will be no damages. Onogoruwa v. IGP (1999), 5 NWLR (Pt 193) 593, referred to.”

2. My Lord, there is a alid and reasonable cause of action in the circumstances of this case, as the Army Council by its letter of compulsory retirement dated 9^th June, 2016, affirmed that it compulsorily retired the Claimant when there was actually no basis for same. The letter has led to the Claimant being retired prematurely with all the attendant stigma and societal odium attached to such compulsory retirement as the ground was said to be on disciplinary grounds over the alleged commission of serious offence(s), whereas there was absolutely none. We urge my lord to so hold.

3. In the case of Allied Bank of Nigeria Ltd v. Akubueze (1997) LPELR – 429 (SC) pp 48 and 49, para F – B, the apex court, per Iguh, JSC, gave three instances which exemplary damages can be awarded. His Lordship held:

“Perhaps it ought to be stressed that exemplary damages properly so called may only be awarded in actions in tort but only in three categories of cases, namely:

1. Oppressive, arbitrary or unconstitutional action by the servants of the government

2. Where “the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff;

3. Where exemplary damages are expressly authorized by statute.”

4. In Obinwa v. C.O.P (2007) 11 NWLR (Pt. 1045) 411 at 426 – 427 paras G – C, the Court of Appeal held that, proof of any of the three grounds for the award will be sufficient for the award of exemplary damages:

“Exemplary damages will be awarded against a defendant in three instances. These are: (a) Where there is an express authorization by statute. (b) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government. (c) Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff. In order to succeed, a plaintiff must be able to prove any of the three conditions. He needs not prove all the three conditions to succeed. Once any of the three conditions is proved, a court of law will award exemplary damages. In the instant case, the action of the 1st-3rd respondents could not be tied to any of the above conditions to warrant the award of exemplary damages against them. Ezeani v. Ejidike (1964) 1 ALL NLR 402; A.R.E.C. Ltd., v. Amaye (1986) 3 NWLR (Pt. 31) 653; Eliachin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times (Nig.) Ltd. (1990) 1 NWLR (Pt. 124) 1; Iluono v. Chiekwe (1991) 2 NWLR (Pt. 173) 316 referred to.] (Summary of the decision of Owoade JCA).

5. His Lordship Ogundare, JSC, in the case of Odogu v. A.G. Fed and Ors, (1996) LPELR – 2228 (SC) at p. 12, paras A – C, clearly stated on when exemplary damages are usually awarded, thus:

“Exemplary damages are usually awarded whenever the defendant’s conduct is so sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”

6. We respectfully submit that the action complained of by the Claimant is against the decision of the Armed Forces Council, a servant of government, over its arbitrary, outrageous, unconstitutional, and flagrant disregard to the provisions of the law as it pertains to the compulsory retirement of a senior military officer in the cadre of the Claimant. The Claimant has sufficiently addressed this issue in the first limb of his argument. We respectfully submit and urge your Lordship to hold that the Claimant in the circumstances of this case is entitled to the award of exemplary damages as claimed. Here is a man who gave his all in service of his fatherland. For decades, he fought in defence of his fatherland. To have been treated with such flagrant shabbiness, contempt, disdain and derision, in a most unconscionable and unconstitutional manner, incurs exemplary damages.

7. On award of aggravated damages as claimed by the Claimant, the apex court in the case of Odibi and Anor. v. Mueme (1999) LPELR – 2216 (SC) per Ogwuegbu, JSC, at p. 24, para G, held:

“Aggravated damages may be awarded where the damages are at large and the conduct of the defendant was such as to injure the plaintiff’s proper feeling of dignity and pride.”

8. In Odiba v. Agege, (1998) LPELR – 2215 (SC) the apex court per Iguh, JSC, at page 25, paras B – D, held on the award of aggravated damages, thus:

“It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the Plaintiff’s rights, or disregarding every principle which actuates the conduct of civilized men.

1. My Lord, the conduct and action of the Defendants leading to the institution of this case, all justify the award of aggravated damages as held in the cases cited above. The Defendant did not only retire the Claimant when there was absolutely no reason for same, but went ahead to injure the Claimants dignity and pride by situating and roping the Claimant in as one either involved in the Arms probe scandal, or the election petition scandal, when the Claimant is not in any way and manner whatsoever involved in either of them and was never in a position to be involved in same. The various newspapers exhibited (Exhibits INI 3 to INI 13), some with banner headlines as well as the Arms Probe Report, are all too obvious for the award of aggravated damages, and we respectfully urge your Lordship to so hold.

1. On the award of general damages, the Court of Appeal in the case of EFCC v. Inuwa and Anor (2014) LPELR – 23597 (CA) held, per Akeju, JCA, at p 18, paras A – B, thus:

“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.”

1. We submit and respectfully urge your lordship to hold that in the circumstances of this case, the Claimant is entitled to the claim for general damages to compensate him for the injury or loss he has suffered being the probable consequence of the act of the Army Council in compulsorily retiring him vide letter dated 9^th June, 2016, on alleged disciplinary ground of having committed a serious offence(s), when there was absolutely none whatsoever committed. We respectfully urge your Lordship to so hold.

CONCLUSION

2. It is humbly submitted that there was absolutely no basis in fact or in law to justify the inclusion of the names of the Claimant amongst those who were alleged to have been indicted by the election probe panel, or in the Arms scandal, when the claimant never faced any of these panels and was never invited, or queried with respect to any allegations.

3. The action of the Defendants is more banal, outrageous and worthy of outright condemnation as they were in a pre-eminent position to know that the Claimant was never involved in any of the scandals, yet went ahead to include his names amongst those who were alleged to have been indicated in the arms deal, or the Election panel probe.

4. We respectfully submit that the claimant has proved the fact that he is entitled to all the reliefs claimed and we urge your lordship to so hold.

5. The actions of the Defendant have caused the claimant unquantifiable damage as his image has been battered, self esteem bruised, career ruined, and future rendered perilous.

6. We respectfully urge your lordship to grant the reliefs as claimed.

7. We are grateful for my Lord’s time.

Dated this ………. day of July, 2016.

………………………………………………………………………………………………

Chief Mike Ozekhome, SAN, OFR, FCIArb, Ll.D

Benson Igbanoi, Esq,

E. A. Egbebu, Esq,

Lady Josephine Mike Ozekhome, LL.M,

P. E. C. Ekwueme, LL.M,

Ndubuisi Michael, Esq,

Godwin Iyinbor, Esq,

Justin O. Omogbemeh, Esq,

Josephine Eret, (Miss),

Kamal Fawehinmi, Esq,

Harrison N. Obi, Esq,

C. C. Ihemadu, Esq,

Kodilinye Arinze, Esq,

C. A. Umeano (Miss)

Mike Ozekhome’s Chambers,

Counsel to the Claimant,

Ukwe Court,

No. 27, Jesse Jackson Street,

(Opposite Lord Lugard Street),

Off Onitsha Crescent,

Asokoro Extension, Abuja.

08035550444, 08022266688,

08055518815, 08033069592, 08095550444.

E-mail: [email protected],

FOR SERVICE ON:

1. THE 1^ST DEFENDANT,

The Nigerian Army,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

2. THE 2^ND DEFENDANT,

Minister of Defence,

Ship House, Olusegun Obasanjo Way,

Area 10, P.M.B. 196, Garki,

Abuja.

3. THE 3^RD DEFENDANT,

Chief of Defence Staff,

Defence Headquarters,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.

4. THE 4^TH DEFENDANT,

Chief of Army Staff,

Plot 1092, Muhammadu Buhari Way,

Area 7, Garki,

Abuja.