Davidson Iriekpen writes that if not checked, the antics of the Nigerian Army could make a mockery of the cases filed by some senior officers, who were compulsorily retired from active duty without due process
These are not interesting times for the Nigerian Army (NA). If it is not battling insurgency in the country, especially in the North-east where hundreds of its men are daily being killed, it is trying to suppress agitations and mutinies from its men on the battlefield owing to poor welfare and inadequate equipment to confront Boko Haram terrorists or it is contending with non-governmental organisations or battling issues relating to the 38 senior officers whose careers were unjustly cut short in 2016.
Long Road to Justice
Penultimate last week, its application for adjournment again stalled hearing in the case of unlawful dismissal instituted by one of the 38 senior officers compulsorily retired in 2016.
The claimant, Colonel Mohammed Auwal Suleiman (rtd), a former Defence Attaché in the Chad Republic, had approached the National Industrial Court in Abuja to challenge the retirement. In his evidence-in-chief on June 13, he told the court that the army violated its own rules and laws when it compulsorily retired some of its senior officers in 2016.
At the resumed hearing of the case, counsel for the army, I. I. Ngele informed the court that the defendants’ sole witness, Major Ali Abba Goni, was not available and that the army was considering the option of substituting the witness. He therefore urged the court for an adjournment.
However, objecting to the application, Suleiman’s counsel, Olayinka Adedeji, said the defence counsel had on October 10 informed the court that the said witness was out-of-station on a course.
She said the submission was contrary to evidence gathered that the said witness was in the office at Army Headquarters Garrison (AHG) in Abuja on the said date. She said the claimants had been informed that Major Goni had since been transferred from AHQ to 8 Division, Monguno in Borno State.
It was gathered that the witness was posted out of Abuja on October 29 but expected to resume on November 5.
Adedeji said the application for adjournment was therefore the second consecutive time the defendants was stalling the proceeding. She therefore urged the court to foreclose their defence.
In a short bench ruling, the trial judge, Justice Sanusi Kado held that with the admittance of the complainant’s counsel to the fact that the witness has been posted out of Abuja, it would be against the doctrine of fair trial to foreclose the defence. He therefore adjourned the matter to February 26, 2019 for definite hearing.
The court also ordered the defendants to ensure that the punitive cost of N20,000 awarded against them at the last sitting was paid to the claimant before the next adjourned date.
This has been the pattern since some of the 38 senior officer compulsorily retired from service unjustifiably went to court to seek justice.
The 38 officers, who many described as the country’s brightest in internal and external security operations, were believed to have been forced out of service without recourse to the rules of disengagement in the Nigerian military.
The most bizarre perhaps was in November when the army arrested the judgment in the case filed Major General Ijeoma N. Ijioma (rtd) challenging his dismissal at the National Indutrial Court in Abuja, forcing Justice Judith Agbakoba to withdraw from the matter. This happened despite its refusal to argue its case and refusing to call any witness.
On the day fixed for judgment, Michael Owolabi, the counsel for the army and Chief of Army Staff, General Tukur Buratai, suddenly appeared in court and accused the judge of bias.
Nwokoro had challenged the decision of the army in retiring him unjustly and without facing a disciplinary panel. He also accused it of violating his rights of employment and demanding reinstatement in line with an order of the court.
After the applicant closed his case in May, the defence team elected not to open defence or call any witnesses. Following that decision, the court adjourned till June to allow parties file their written addresses. While the applicant filed a final written address, the defence team, comprising the Nigerian Army, Minister of Defence, Chief of Defence Staff and the Chief of Army Staff refused to do same after three adjournments at their instance.
Following the failure, and after the stipulated time, the trial judge, Justice Agbakoba, foreclosed the defence team, meaning that the court would no longer allow it to further delay judgment, which was expected to follow the submission of written addresses by parties. After that decision of the court in October, the judge adjourned till November for judgment.
At the opening of session in November, however, the defence lawyer, Michael Owolabi, asked Justice Agbakoba to recuse herself, accusing her of bias over the decision of the court to foreclose the defence team in October.
Owolabi drew the attention of the court to an application he said the defence had filed at the Appeal Court, which required that the matter before the industrial court be suspended. He also said a petition had been written against the judge and sent to the President of the National Industrial Court.
“Justice is rooted in confidence, My Lord. One of the parties appearing before Your Lordship has lost confidence,” Owolabi said.
Meanwhile, a cursory look at the list of the 38 officers revealed that 29 of them are Christians and from southern part of the country, while the remainders are northerners. The officers, according to THISDAY investigation, were neither queried nor indicted by any panel, but got flushed out of the system for reasons that smack of high-level arbitrariness, persecution and partisanship by the army authorities.
In their various letters of retirement, the army authorities hinged their decision on “provisions of Paragraph 09.02c (4) of the Harmonised Terms and Conditions of Service for Officers 2012 (Revised).” The section shows that the officers were laid off “on disciplinary grounds i.e. serious offence(s).”
However, contrary to the claim by the army, investigations have since revealed that while only a few of the affected officers were queried, tried and indicted, others simply had their careers abruptly cut short without any trial, indictment or even warning, an indication that the officers were not only victims of ethnic cleansing, but overzealousness, vindictiveness, arbitrary, unfair and capricious applications of military laws that violated army regulations and the fundamental rights to fair hearing of the officers as a citizens.
Spurned Intervention by Senate
Otherwise, many of are wondering why the army is reluctant to reinstate the officers despite the intervention of the courts and the National Assembly.
For instance, recently, the Senate asked the army authorities to reinstate one of the officers, Col. Chidi Ukoha. After listening to Ukoha’s petition, the Senate Committee on Ethics and Privileges, realising that the officer was neither queried nor given fair hearing before his dismissal, asked the army to reinstate him.
It also cautioned the army authorities against arbitrary disengagement of officers. But despite this, the army has refused to review the cases.
Contravention of Armed Forces Act
Some of the officers have also described the reasons given for their compulsory retirement as untenable because the action had nothing to do with the so-called ‘service exigency’ and clearly contravened the Armed Forces Act (AFA), CAP A20 Laws of the Federation of Nigeria 2004 on which their compulsory retirement was grounded.
Citing instances where the AFA was contravened the officers pointed out that in the AFA, “all military officers are entitled to appear before a Court Martial to ascertain their guilt or otherwise when accused or alleged to have committed an offence”.
Pointing out that the Chief of Army Staff, Lt. Gen. Buratai, had a hidden agenda in ensuring that they were booted out of the service, the officers stressed that in some instances, some of them were out of the country at the time some of the infringements were allegedly committed, while others had neither been queried nor ever received any summons before a civil or military tribunal or inquiry.
Specifically, four of the officers: Brig. Gen. Aghachi, Brig. Gen. I.M Lawson, Col. M.A Suileman and Lt. Col T.E Arigbe, were actually on assignment out of the country, but were also retired without fair hearing.
In the Nigerian Constitution, fair hearing is clearly expressed under Section 36 (2) (a) which states: “Provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”
Some of the questions begging for answer are: Why did Burutai and Minister of Defence, Brig-General Dan-Ali (rtd), mislead the nation by publicly saying that all the officers were granted fair hearing, when they know that it was not true? If they really gave the officers fair hearing, can they provide evidence of the days and times these officers appeared before the court martial or even panels of inquiry?
Many analysts are completely surprised as to why the same army under Buratai who reinstated Major General Ahmadu Mohammed, would sack 38 officers without hearing from them.
Mohammed, it would be recalled was the General Officer Commanding (GOC) of 7 Division in 2014 when his troops mutinied and fired at his vehicle. The soldiers accused him of dereliction of duty and sending them to the battlefield with minimal logistic supports thereby leading to many deaths.
The former GOC who is from Kano State, did not appeal his retirement within 30 days as stipulated by the conditions of service which according to defence sources, was already a breach of the appeals process but this was ignored because the army headed by Buratai had an interest to ensure fairness and justice was served.
Mohmmmed instead, waited for the outcome of the general election as well as the removal of the previous service chiefs. After the appointment of Buratai as Chief of Army Staff, he then decided to appeal his retirement in September 2015, a good nine months after and was recalled in January this year.
At the time of his recall, army spokesman stated: “Although, it is not an aberration for the international human rights body to raise such an observation, however, it did not take into cognisance the circumstances leading to his illegal retirement and the legal procedure that was followed in his reinstatement. The compulsory and premature retirement of Major General Mohammed did not follow due process and was rather arbitrary.
“The senior officer was never charged, tried, let alone found guilty of any offence that justified his premature retirement. The action was therefore a clear violation of extant rules, regulations, as well as terms and conditions of service of the armed forces of Nigeria. This obvious violation prompted the senior officer to seek redress using the appropriate legal means.
“Consequently, the realisation of these omissions called for a review of the case by the Army Council and his subsequent reinstatement into the service.”
Analysts are wondering why the same army under Buratai, which reinstated Mohammed whom it stated was never found guilty of any offence, proceeded to retiring several officers without trying them. They stated that this was clear evidence that the laid down military procedures were not followed in the retirements of the 38 officers, arguing that the same mistakes made when General Mohammed was retired have been made again.
Fallout of 2015 Election
Defence sources alleged that one of the main reasons why the army authorities retired some of the officers was because they refused to cooperate with the All Progressives Congress (APC) during the last general election in some Peoples Democratic Party (PDP) strongholds.
“This is not fair because they wanted to ensure transparency. It was not because they were loyal to PDP government or sided a political party. They just wanted to ensure that bloodbath was averted at the end of the polls,” one of the sources told THISDAY.
Recourse to NBA
Sensing that attitude and antics of the counsel to the army, Owolabi, could rob him of justice and invariably affect other cases in courts, Gen. Ijioma last week dragged him before the Nigerian Bar Association (NBA) and Legal Practitioners Disciplinary Committee for obstruction of justice. In his letter dated December 3, 2018 and addressed to the two legal institutions, he accused Owolabi of deliberately constituting a clog in the wheel of justice through some unprofessional antics and delay tactics.
This, he said, could combine to violate his rights to fair hearing and ultimate justice if the lawyer’s conduct is allowed to stand.
The retired general listed instances where the army defence counsel had in the last two years, adopted several measures to deny him of justice.
For now, many observers are calling on the President of the National Industrial Court where almost all the cases are filed, and ultimately the Chief Justice of Nigeria to curtail the excesses of the army in order not to make a mockery of the judiciary which they reiterated is the last hope of the common man.