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Yola---His Lordship, Hon. Justice NCS Ogbuanya of the National Industrial Court of Nigeria, sitting in Yola, on Wednesday 3rd October 2018 in a judgment declared as unlawful, invalid, null and void the amended signal by which ACM MOHAMMED AUWAL was classified for Involuntary Discharge on medical grounds for alleged chronic alcoholism without subjecting him to another medical examination against the amendment of the already approved classification.
His Lordship ordered Defendants to retain the Claimant in the previous list of the Signal where he was already classified and approved as entitled to discharge on medical grounds eligible for disability pension pursuant to the ARMED FORCES OF NIGERIA HARMONIZED TERMS& CONDITIONS OF SERVICE (HATCOS) FOR SOLDIER /RATINGS/AIRMEN 2012 (REVISED)-HTACOS (Airmen).
The Claimant instituted this action challenging his purported withdrawal from the list of Airmen who were discharged and entitled to medical disability pension upon the recommendation of the 1st Defendant’s Medical Board after examining him due to the adverse effect of complicated abdomen surgery performed on him while in active service, but which recommendation was later amended by the 1st Defendant and a new signal was released indicating that he was involuntarily discharged on medical grounds for chronic alcoholism, without undergoing any further medical examination by the Medical Board or there being any evidence of his indulging in alcoholism.
The Claimant sought against the defendant among others; A DECLARATION that the Claimant’s Medical Discharge with Disability Pension as earlier conveyed to him by the Defendants through the NAF MESSAGE FORM endorsed by SQN.LDR E.S ONOBRAKPEYA is valid, lawful and subsisting. A DECLARATION that the Claimant by the provisions of Harmonized Terms & Condition of Service for Soldiers/Ratings/Airmen 2012 (Revised) at page 58 under OTHER [DISABLEMENTS] he is entitled to be paid 100% by assessment of percentage and by the Description of his injury which is very severe in nature.
Likewise, A MANDATORY INJUNCTION directing the Defendants to ensure the payment of the Claimant’s salary arrears and all his benefits and entitlements in respect to his discharge on Medical ground with disability pension with 100% assessment as outlined in para.14.22 of HTACOS 2012 (Revised) under OTHER DISABLEMENTS is paid within 30 days after judgment.
The Defendants wholly denied the Claimant’s claims and insisted that the Claimant’s medical condition revealed chronic alcoholism which was self-inflicted and that there was no provision for disability pension in cases of ‘intestine adhesions’ which arose on account of self-inflicted injury resulting from chronic alcoholism by the Claimant.
The Claimant insisted that he is entitled to disability pension, based on the 1st Defendant’s Medical Board’s confirmation that he had severe injuries sustained leading to surgery operations on him, of which the 1st Defendant earlier relied on in discharging him on medical disability with pension, and circulated same to all the Units of the Airforce Command through the 2nd Defendant’s Office.
At the resumed trial proceedings, the Claimant’s Witness, the Chief Medical Director of Federal Medical Centre (FMC) Yola, testified on the medical conditions of the Claimant and tendered the Claimant’s Personal Confidential Medical File upon his initial admission on 16/3/12.
In his Final Written Address, the Defendants’ Counsel, formulated a sole issue for determination Whether this Honourable Court will exercise its jurisdiction to hear or adjudicate on the matter that is statute-barred on the ground that the suit is caught by the provisions of Public Officers Protection Act which prescribed 3 month time limit to institute action against acts of public officer.
On his part, learned Claimant’s counsel, F.A Ogbe, Esq submitted that the matter is not caught by limitation law, as the act complained of is a continuing injury, which falls under the exceptions to the general rule of limitation law, urged the court to uphold his submissions.
After closely followed the proceedings and read the processes and submissions, watched the demeanor of the parties’ witnesses and evaluated the evidence adduced, particularly that of the subpoenaed expert witness, the Chief Medical Director of the Federal Medical Centre (CW2), His Lordship, Hon. Justice Nelson C. S. Ogbuanya resolved against the Defendants, and hold that the suit is not caught by the limitation law as set out in the general provisions of S.2 POPA. It rather falls within the exception thereto.
“As it stands, I find that the Amended Signal did not provide any justifiable reason for the change/alteration of the original Signal approved by the CAS that listed the Claimant for Discharge on Medical grounds with Disability Pension.
“Accordingly, it is hereby declared that the 1st Defendant’s Signal which originally classified him as eligible for discharge on medical grounds and entitled to disability pension after subjecting him to medical examination of the 1st Defendant’s Medical Board remains valid and subsisting.” Justice Ogbuanya stated.
“It is further Declared that the 1st Defendant’s subsequent Signal Amending the earlier Signal by which the Claimant was later classified for Involuntary Discharge on medical grounds and not entitled to disability pension for alleged chronic alcoholism without subjecting him to another medical examination is unlawful, invalid, null and void, the Defendants having not provided official reason warranting the amendment of the already approved classification.
His Lordship ordered the Defendants to compute and pay to the Claimant his disability pension entitlements pursuant to the para.14.22-14.24 of HTACOS (Airmen) and any of his outstanding salaries prior to the effective date of his formal Discharge, within two (2) months of this Judgment.
The court also grant the sum of N500, 000 in favour of the Claimant, and all Monetary payments in this Judgment shall be paid by the Defendants to the Claimant within two (2) months.
