- Court upholds officers’ right to challenge disengagement
Bolaji Adebiyi in Abuja
Rays of hope that 38 officers retired by the Nigerian Army in June last may regain their jobs has emerged as the Senate has written to the Chief of Army Staff, Lt. Gen. Tukur Buratai, and the Secretary to the Government of the Federation (SGF), Mr. Boss Mustapha, urging the immediate reinstatement of one of them, Col. Chidi Ukoha (rtd.), and cautioned the Army authorities against arbitrary retirement in order not to demoralise its officers and men.
The officers also got respite from the Court on Wednesday when the National Industrial Court in Abuja ruled that the officers had a right to challenge their retirement in court.
In separate letters to the two senior officials of government, dated November 23, 2017 and signed by M.A. Sani-Omolori, Clerk of the National Assembly, exclusively obtained by THISDAY, said: “The Senate of the Federal Republic of Nigeria at its sitting of Tuesday 21st of November, 2017, considered the Report of the Petition by Colonel Chidi Kalu Ukoha against the Nigerian Army for his wrongful retirement from the Army and consequently resolved to urge the Nigerian Army to immediately reinstate Colonel Chidi Kalu Ukoha and pay all his entitlements accordingly.
“Caution the Nigerian Army against arbitrary disengagement of its officers, as such action would not only discourage serving officers and soldiers from giving their full commitment to service of the Army and the nation, but would also amount to colossal waste of national resources spent by the federal government on training of such officers only to suddenly dismiss them.”
The letters, according to THISDAY sources, were received by the offices of the two officials on November 27, 2017.
The Army had in June 2016 retired 38 officers for alleged serious offences. With most of them hailing from the Southern part of the country, there were murmurs that the action was politically motivated, at least two of them, Col. Ojogbane Adegbe and Brig-Gen Mustapha Onoyiveta, were former ADCs to ex-presidents Goodluck Jonathan and Umaru Musa Yar’Adua. None of the 38 officers were granted fair hearing or found guilty of an offence.
Many of the officers protested their compulsory retirement accusing the Army of arbitrariness and violation of due process laid down in the Armed Forces Act, CAP A20 Laws of the Federation of Nigeria 2004.
While some of them challenged their retirement in court, Ukoha wrote a petition to the Senate complaining that the Army acted arbitrarily because he was neither formally accused, tried or found guilty of an offence before he was compulsorily disengaged.
Upon the receipt of his petition, the Senate referred it to its Committee on Ethics and Public Petition for investigation. The committee laid its report on November 21, 2017, recommending the reinstatement of Ukoha, having found out that he was wrongfully disengaged.
The Senate’s findings and directives, said some of the affected officers, who spoke anonymously with THISDAY yesterday, raised their hope that justice might come their way even as they urged the federal government to review their appeals and urge the Army authorities to comply with the Senate resolution.
The officers’ morale were further boosted when on Wednesday, the NIC upheld the right of one of them, Maj-Gen Nwokoro Ijioma, to challenge his compulsory retirement.
Ijioma had filed a suit in the court, challenging his forced retirement citing injustice, lack of due process and fair hearing.
According to PRNigeria.com, the trial Judge, Justice E.N. Agbakoba on Wednesday, ruled against the preliminary objection to the suit filed by the Army and its Chief of Staff (COAS), Lt-Gen. Tukur Buratai, saying the officer needed to exhaust the service’s internal processes first before approaching the court.
The court overruled the Army and fixed February 8, 2018 for hearing the suit.
Ijioma is seeking his reinstatement into the Nigerian Army, arguing that his compulsory retirement did not follow due process and procedure.
Other defendants in the suit are: Minister of Defence and Chief of Defence Staff.
In her ruling, Justice Agbakoba after considering submissions of counsels to the claimant, Godwin Iyinbor of the chambers of Mike Ozekhome SAN, and counsel for the 1st and 4th respondents, M.D. Owolabi, said: “General Ijioma has the permission of the court in furtherance of his prayers to challenge the defendants that he be reinstated back to service on the ground that his compulsory retirement did not follow due process as laid down by the Armed Forces Act for an officer of his status.”
Speaking to journalists, Iyinbor said Ijioma was challenging the validity of his compulsory retirement from the army after putting in about 33years in services and he is expected to present his sole witness before the Court on February 8 to establish his case against the defendants.
In his submission before the court, Iyinbor said: “There was no justifiable reason(s) for the claimant’s early compulsory retirement as he has not attained the mandatory retirement age for Major Generals in the Army, which is 56 years, as he was only 53 years by 12th June 2016, and has only served for 32 years, 11 months and 5 days, as against the mandatory 35-year service age for retirement as provided for by Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the Military.”
He prayed that the court to compel the respondents jointly and severally to pay to the him the sum of N1 billion 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 him and his family, by the actions of the respondents.
Ijioma, in his statement of claim, stated that on Friday, June 10, 2016, while at work, he got a text message from one Lt. Col. S. O. G. Aremu, Staff Officer to the Military Secretary in charge of recruitment, deployment, appointment informing him that the Army Council, which sat on June 9, 2016, had retired the Claimant.
A letter was conveyed to him to the effect that the Army Council at its meeting of June 9, 2016, approved his compulsory retirement from the Nigerian Army, with effect from June 9, 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 his purported compulsory retirement was on disciplinary grounds, i.e., serious offence(s).
Ijioma claimed that there was no justifiable reason for the his early compulsory retirement as he had not attained the mandatory retirement age for Major Generals in the Army, which is 56 years, as he was only 53 years by 12th June, 2016, and has only served for 32 years, 11 months and 5 days, as against the mandatory 35-year service age for retirement as provided for by Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the Military.
Ijioma is, therefore, seeking, among others, the court’s interpretation of the law as to whether: “Whether he as a Major General in the Nigerian Army, ought to be tried by a General Court Martial for any alleged offence and cannot be tried summarily, which is a trial reserved for officers of lower rank in the Military.
“Whether the claimant is entitled to representation by counsel of his choice or to defend himself before any decision for or against his interest could be reached and whether failure to allow the claimant right to defend himself amounts to a denial of fair hearing.
“Whether the conduct of the defendants is illegal null and void as the Claimant was never tried in any court of competent jurisdiction and no sentencing or verdict was pronounced against him, and as the Army Council was never handed the records of proceedings for review or confirmation of any verdict passed on him.
“Whether the claimant can legally and validly be disengaged from service under the provisions of of paragraphs 09.02c(4) the Harmonized Terms and Conditions of Service for Officers 2012(Revised) when; No proceeding was held to try him and a verdict given, no record of proceedings is compiled and transmitted, with the verdict to Army Council, for ratification.
“The claimant claimed further that he was never given any charge in the prescribed Form AB 252, which is the means of reporting an offence against service personnel.
“He is therefore seeking a declaration of the Court 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 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.
“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.
“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 base 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.
“A declaration that the present action of the claimant in seeking justice before the court, shall not constitute any ground to witch-hunt or victimize the Claimant upon his reinstatement to the services of the Nigerian Army.