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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE

 

DATE: FEBRUARY 9, 2026                                           SUIT NO: NICN/ABJ/370/2023

BETWEEN:

COMMODORE S. I. ADEBAYO                                                           CLAIMANT

 

AND

1. THE NIGERIAN NAVY                   

2. THE NIGERIAN NAVY BOARD                                                     DEFENDANTS

3. CHIEF OF NAVAL STAFF             

 

REPRESENTATION

Odion Peter Odia for the Claimant, with Kingsley Ajewole, Christiana Egbochie.

Dr. Nnaemeka Otagburuagu for the Defendants, with Emmanuel Enemor, A.G. Ajeka.

 

                   JUDGMENT

Introduction and Reliefs

[1] The Claimant commenced this action by way of originating summons on December 14, 2023. By an amended originating summons filed on 12th February 2025, the Claimant is praying for the determination of the following questions;

a.      Whether the action of the Defendants in the purported retirement of the Claimant from active service of the Nigerian Navy as a Commodore via the letter of retirement from service dated the 19th day of September, 2023 as presented in this case constitutes a most wanton and unconstitutional application of unfair practices to the detriment of the Claimant.

 

b.      Whether the Claimant in this suit, who was the appellant in Appeal No. CA/A/601C/2016 in Commodore S. I Adebayo V. The Nigerian Navy, and also the respondent in Appeal No: SC/1077C/2018 is not entitled to be re-instated by the Defendants to his pre-trial status in the Nigerian Navy based on the Judgment of the Court of Appeal delivered on Monday the 16th day of July 2018 in Appeal No. CA/A/601C/2016 and the judgment of the Supreme Court delivered on Friday, the 12th day of July 2024 in appeal no. SC/1077C/2018 affirming the Court of Appeal judgment herein above stated wherein the Court of Appeal ordered that the Claimant be restored to the Rank of Commodore by the Defendants.

 

c.      Whether the Defendants in this suit are not bound, having regard to the above judgments of the Court of Appeal and the Supreme Court, to re-instate the Claimant into the Nigerian Navy and restore his rights and privileges including the payment of his arrears of salaries and allowances as well as all his accrued benefits from the 27th day of September, 2016 till the date his employment is lawfully determined in accordance with the terms and conditions governing his employment with the Nigerian Navy, including his promotion to Rear Admiral, the rank befitting his status, experience and seniority in the Nigerian Navy.

 

d.      Whether the Defendants in this suit are not bound, having regard to the above judgments of the Court of Appeal and the Supreme Court, to restore his rights and privileges including the payment of his arrears of salaries, allowances and gratuities commensurate to the rank of Rear Admiral, the rank befitting his status in accordance with the terms and conditions governing his employment with the Nigerian Navy before his compulsory retirement.

 

[2] Upon the determination of the questions in his favour, the Claimant is seeking the following reliefs:           

1)     An order setting aside the purported letter of retirement from service dated the 19th day of September, 2023 which was issued to the Claimant by the Defendants for being unlawful, invalid, unconstitutional, void and of no effect whatsoever.

 

2)     An order compelling the Defendants to restore the Claimant to the rank of Rear Admiral which ought to be his rightful rank of retirement.

 

3)     An order compelling the Defendants to re-instate the Claimant into the Nigerian Navy With effect from the date of his purported retirement without any loss of  seniority as Rear Admiral, having regard to the Court of Appeal’s nullification of his trial by a General Court Martial and an order of discharge and acquittal entered in his favour by the said Court Of Appeal in Appeal No. CA/A/601C/2016 between Commodore S. I. Adebayo V. The Nigerian Navy, in its judgment delivered on Monday the 16th day of July 2018 which same judgment affirmed by Supreme Court judgment dated the 12th day of July, 2024 which ordered that the Claimant be restored to the Rank of Commodore by the Defendants.

 

4)     An order compelling the Defendants to restore to the Claimant all the consequential service rights, privileges and entitlements due to him including his salaries, allowances, and other accrued benefits since 19th day of September, 2023 when he was unlawfully retired including his promotion to the appropriate rank of Rear Admiral befitting his status, experience and seniority till the date his employment is determined within the provisions of the Constitution, the statute and the Terms and Conditions of Service applicable to his employment with the Nigerian Navy having regard to the judgment of the Court of Appeal in Appeal No. CA/A/601C/2016 between Commodore S. I. Adebayo V. The Nigerian Navy which was affirmed by the Supreme Court judgment dated the 12th day of July, 2024.

[3] The amended originating summons is supported by an affidavit sworn to by the Claimant and a written address. The Defendants filed a counter affidavit which was sworn to by Lt Esla Angbahim on March 14, 2025 and a written address. The Claimant filed a further and better affidavit on 4th April 2025 and a reply on point of law.

CASE OF THE CLAIMANT

Facts

[4] The facts upon which the claimant has premised the questions for determination and the reliefs it is seeking are as contained in the supporting affidavit. In January 2016, he was arraigned before the special court martial on two count charges of conduct to the prejudice of service discipline. He was discharged and acquitted on count two of the offence, and was convicted on the 28th June 2016 on count one and sentenced to reduction in rank from Commodore to Captain with the seniority of 17 September, 2012. The Claimant states that the Naval Board confirmed the sentence with effect from 17 September 2012 running seniority with 41 Regular Course as contained in the letter of confirmation of sentence.

[5] The Claimant states that he appealed to the Court of Appeal; and the Court of Appeal delivered Judgment on the 16 July, 2018 setting aside the decision of the special court martial and its confirmation by the Navy Board. The Court of Appeal discharged and acquitted him, and ordered that he be restored to the rank of Commodore. The Claimant states that despite all his demands personally and by his legal representative, the Defendants refused to comply with the Order of the Court of Appeal restoring him to his rank of Commodore; and instead appealed to the Supreme Court. The Claimant states that

by 2018 he should have been considered for promotion to Rear Admiral if the Defendants had obeyed the Judgment of the Court of Appeal. He states that in 2022 he was considered for promotion from Navy Captain to Commodore without recourse to the judgment of the Court of Appeal despite his letters of appeal.

 

[6] The Claimant states that while the appeal at the Supreme Court was pending; the Defendants served him with a notice of voluntary retirement in June 2023 and he immediately wrote a letter to the Chief of Naval Staff dated the 20th July, 2023 making a passionate plea to please resolve the issue at the Supreme Court and grant him fairness and justice before considering him for retirement. That despite ventilating his grievances  against the demand for voluntary retirement, he was served with a letter approving his voluntary retirement from service dated 19th September 2023 when he did not voluntarily retire from service but was forcefully retired as a Commodore instead of Rear Admiral. The Claimant states that the Supreme Court delivered its judgment on the 12th July, 2024 affirming the Court of Appeal Judgment.

 

Submissions

[7] The Claimant submitted two issues for determination as follows;

(a)  Whether or not the voluntary retirement of the claimant as contained in the 3rd Defendant letter dated 19th day of September, 2023 is not in disobedience of the judgment of the Court of Appeal No. CA/A/601C/2016 between Commodore S. I. Adebayo V. The Nigerian Navy, in its judgment delivered on Monday the 16th day of July 2018 and, therefore, illegal, null and void.

(b)  Whether or not the claimant is not entitled to the grant of the reliefs sought in this suit.

[8] Learned Counsel on issue 1, submitted that the Defendants by virtue of Exhibit DION exhibit A, demoted the claimant from the rank of Commodore to the rank of Navy Captain in accordance with the judgment of the General Court Martial which was delivered on the 28 June, 2016. He submitted that the natural and ordinary interpretation of the Court of Appeal Judgment is to the effect that the trial of the Claimant at the General Court Martial, the conviction, sentencing, his letter of reduction in rank and never existed; it is null and void and without any effect, value or substance whatsoever. He submitted that the decision of the Court of Appeal is binding, subsisting and is to be obeyed by all persons citing Nwankwo v. Yar’adua [2010] 12 NWLR (Pt. 1209) 518 at 564. He further submitted that it is settled law that this Court can enforce the judgment and orders of the Court of Appeal against the Defendants pursuant to section 287(2) of the 1999 Constitution, and based on the doctrine of stare decisis the judgment of a higher Court is not only binding on all inferior courts but it supersedes the lower Court’s decision unless and until it has been set aside by another higher Court. He cited Chedi & Anor v AGF [2007] LPELR-8958 (CA), FRN v Saraki [2017] LPELR-43392 (CA), Obiuweubi v CBN [2011] 7 NWLR (PT. 1247) 465 SC, and Gebi v Dahiru (2013) 1 NWLR (PT. 1282) 560 CA.

[9] Learned counsel submitted that the act of the Defendants’ constitutues a wanton and unconstitutional application of unfair labour practice to the detriment of the Claimant. He submitted that the term unfair labour practice has been generally defined to mean practices that do not conform to best  practices in labour circles  as may be enjoined by local and international experiance. He cited Mix & Bake v NUFBTE (2004) 1 N.L.L.R (Pt.49) 69, Aluminium Manufacturing Co. Nig. Ltd v Volkswagen Nig. Ltd (2010) 21 N.L.L.R (Pt.60) 428, F.B.N Plc v Associated Motors (1998) 10 NWLR (Pt.570) 441, MPWUN v Alzico Ltd (2010) 18 NLLR (Pt.49)69

[10] Learned counsel on issue 2, submitted that the Claimant is entitled to the reliefs he is seeking on account of the refusal of the Defendants to comply with the decision of the Court of Appeal and restore him to his rank of Commodore before the decision of the court martial. He argued that had the defendants obeyed the Judgment of the Court of Appeal, the Claimant would not suffer any disadvantage in rank; and that as it stands today, the Claimant has remained stagnated in the rank of Navy Captain and Commodore since the year 2016. A clear disadvantage contrary to the decision of the Court of Appeal which ordered that the Claimant be restored to his rank. He submitted that this is the mischief the Court of Appeal sought to avoid when it made the order that the claimant should be restored back to his rank of Commodore so that the Claimant shall not be made to suffer any disadvantage in his rank.

[11] Learned counsel contended that promotion of the Claimant in the Service was done every 4 years and that by simple Arithmetic, the Claimant was promoted to the rank of Commodore in 2014, with two years left for him to be due for promotion to the rank of Rear Admiral by 2018, and then the sentence of reduction in rank to Navy Captain in 2016. He argued that rather than obey the Judgment of the Court of Appeal in 2018, he was made to sit for promotion exam from Navy Captain to Commodore, instead of Commodore to Rear Admiral. He submitted that the orders of the Court of Appeal that the Claimant should not suffer any disadvantage in his seniority in the said rank as a result of the trial is valid and binding, and he cited Sam v State [2016] 5 NWLR (Pt. 1504) 24 at 34. He submitted that a party is not to review a judgment of Court, regard it as a nullity and disobey it. Rather, that it is the duty of a party to obey the orders of the judgment of Court. He submitted that the Claimant is entitled to adequate compensation having been on the rank of a Commodore while his course mates have since been promoted to the rank of Rear Admiral, the judgment of the Court of Appeal ordering that the Claimant should be restored to the rank of Commodore was not complied with, and he has been diligent in his quest to correct the wrong he has suffered from the Defendants. He then urged the Court to grant the Claimant’s.

CASE OF THE 1ST – 3RD DEFENDANTS

Facts

 

[12] The Defendant’s case is as stated in the counter affidavit. They state that the 1st Defendant is established pursuant to the provisions of the 1999 Constitution, and the 2nd Defendant pursuant to the Armed Forces Act; and that the Claimant’s employment while in service was governed by the Armed Forces Act. The Defendants state that promotion to the rank of Rear Admiral is not after 4 years on the rank of Commodore but by selection based on three good performance evaluation reports, success at the promotion board.  That for a Commodore to be promoted to the rank of Rear Admiral, he must be awarded Fellow of Defence College or Member of National Institute  or equivalent, be eminently deployable, have professional ability, expertise, appropriate qualification, and vacancy for the rank. The Defendants state that promotion is not automatic but a privilege by the selection Board upon meeting the requirements in the Armed Forces of Nigeria Harmonized Terms of Service (HTACOS) officers 2017 Revised. The Claimant never met any of the conditions to necessitate consideration for the rank of Rear Admiral in the Nigerian Navy.

 

[13] The Defendants state that the Claimant was given a light punishment upon conviction to reduction of rank from Commodore to Captain with effect from17th September 2012, and not for his seniority to run with 41 Regular Course. The Defendants state that the Claimant’s rank of Commodore was restored in line with the judgment of the Court of Appeal in 2022 despite a pending appeal at the Supreme Court after the requisite administrative processes for the restoration to the rank of Commodore were followed and observed. The Defendants state that filing an appeal to the Supreme Court was not aimed at preventing the Claimant from reaping the fruit of the judgment of the Court of Appeal, but to ensure that the “conveyor belt of justice is exhausted.” The Defendants state that there was no stay of execution pending appeal, and that what the Claimant alleges to be promotion is an administrative action giving life to the judgment of the Court of Appeal.

 

[14] The Defendants state that a notice of voluntary retirement was in line with the condition 11.02 (2) (5) of reference A of the Harmonized Terms & Conditions of Service (HTACOS) Officers, 2017. That the Claimant was notified when the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria appointed Service Chiefs from the 39 Regular Course of the Nigerian Defence Academy, and same affected officers who are senior in commission to the Service Chiefs. The Defendants state that the notice of voluntary retirement was not targeted at the Claimant; that it was as a result of the appointment of members of 39RC as Service Chiefs by the President and Commander in Chief of the Armed Forces. The Defendants state that it is customary when Service Chiefs are appointed, for the older staffers to retire voluntarily to maintain respect, decorum and seniority in the Armed Forces of Nigeria. The Defendants state that the voluntary retirement of the Claimant is in line with the provisions of the Harmonized Terms & Conditions of Service (HTACOS) Officers, 2017.

 

[15] The Defendants state that upon the Claimant being notified via a letter of notice of voluntary retirement, the Claimant was under obligation to act accordingly being a person subject to service law whose employment is clothed with statutory flavor. The voluntary retirement was in line with the service conditions. The Defendants state that the Claimant instituted this suit during the pendency of the appeal at the Supreme Court, and is academic and an abuse of Court process.

 

Submissions

[16] The 1st- 3rd Defendants submitted two issues for determination as follows:

1. Whether given the surrounding circumstances of this case, this suit ought not to be dismissed for being an abuse of Court process in view of the fact that the Claimant instituted the instant action during the pendency of an appeal in Appeal Number SC/177C/2018 seeking reliefs predicated on a completed action?

2. Whether given the circumstances of this case, this Honourable Court is seized with the requisite jurisdiction to grant the reliefs sought by the Claimant as per his Claimant’s Originating Summons?

[17] Learned Counsel argued both issues together. He stated that the Claimant is a person subject to Service law, the Nigerian Armed Forces Act Cap A20 LFN 2004 and the Harmonized Terms and Condition of Service. He submitted that the Claimant was restored to the rank of Commodore in 2022, and that there is nothing placed before the Court to show that the steps taken by the defendants in 2022 was contrary to the Judgment of the Court of Appeal. He further submitted that the provisions of the Harmonized Terms & Conditions of Service (HTACOS) Officers, 2017 are clear and unambiguous; and that the literal rule as a canon of interpretation is inevitable. It was his submission that this suit is academic as the Defendants have administratively dealt with the reliefs the Claimant is seeking, and therefore the jurisdiction of this court to entertain and adjudicate is ousted being an academic issue. He cited Plateau State v. A.G Federation (2006) 3 NWLR (Part 967) 346 at 419, FRN v. Borishade (2015)5 NWLR (Part 1451) 155.

 

[18] Learned counsel submitted that the instant suit is an abuse of judicial process as the relief sought by the Claimant is premised on frivolity citing Saraki v. Kotoye (1992) 9 NWLR (Part.264) 156. He submitted that a combined reading of the affidavit of the Claimant and the counter affidavit would lead to a conclusion that the reliefs sought are action which have been completed by the lawful acts of the Defendants in the  restoration to rank of Commodore in 2022 in compliance with the judgement of the Court of Appeal; and the voluntary retirement of the Claimant pursuant to the provisions of the Armed Forces Act. Counsel argued that the retirement of the Claimant is a completed act leaving nothing for this court to adjudicate on except for jurisprudential basis. He cited Ogbonna v. President, F.R.N. (1997) 5 NWLR (Part.504) 281 at 287; A.G. Federation v. ANPP (2003) 18 NWLR (Pt.851) 182 at 215; Mamman v. Salaudeen (2005) 18 NWLR (Pt 958) 478 at 500.

 

[19] Learned Counsel submitted that Chapter 17 of the Armed Forces Harmonized Terms and Condition of service (HTACOS) provided in clear terms the conditions for promotion which must be fulfilled prior to an officer being promoted. He further submitted that  promotion to the rank of Rear Admiral is not as of right but on the mandatory fulfillment of the provisions of chapter 17 of Harmonized Terms and Condition of Service for other officers. In the circumstance of this case, the Claimant is not entitled to be promoted to the rank of Rear Admiral. It was his contention that in line with the extant provisions of the Armed Forces Act and its subsidiary legislation, the Armed Forces Harmonized Terms and Conditions of Service, the Defendants upon receipt of the Certified True Copy of the judgment of the Court of Appeal, sat and administratively obeyed the Judgment. He then urged the Court to resolve the issues raised in favour of the Defendants and dismiss this suit with the cost of N50,000,000.00 (Fifty Million Naira) for the following reasons:

a)      The Claimant instituted the instant action during the pendency of an appeal at the Supreme Court in appeal number SC/1077/2018 between the Nigerian Navy v. Commodore S.I Adebayo;

b)     The reliefs bother on a completed action;

c)      The suit is academic in nature.

d)     The subject matter and the reliefs sought at the Supreme Court in appeal number SC/1077/2018 between the Nigerian Navy v. Commodore S.I Adebayo and the instant action are the same and an abuse of court process.

Reply

[20] Learned counsel to the Claimant submitted that this suit arises because the Defendants failed to obey the Court of Appeal order, and the Defendants forceful retirement without compliance with judicial orders. He submitted that the Defendants’ claims regarding the 41 Regular Course and the appointment of a 39 RC officer as Chief of Naval Staff lacks legal basis as it is not in the Armed Forces Act (AFA) LFN 2004 or HTACOS 2017. The retirement under these pretexts is unlawful and arbitrary. He  urged the Court to grant all reliefs sought by the Claimant.

Decision

[21] Having carefully considered the processes filed, the affidavit evidence of the parties, the submissions and authorities cited, it is pertinent to first begin with the facts already established by the affidavit evidence that has resulted in this action. There is no dispute that the Claimant was a member of the 38 Regular Course and a Commissioned Officer. The Defendants first promoted the Claimant to the flag rank of Commodore with effect from 21 September 2014 as seen in Exhibit B annexed to the Claimant’s further and better affidavit. He was arraigned before the special court martial in January 2016 on two count charges. The Claimant was discharged and acquitted on count 2, and on 28th June 2016 convicted on count 1 and sentenced to reduction in rank from Commodore to Captain with effect from 17 September 2012 and this was confirmed by the Naval Board.

 

[22] The Claimant appealed the decision of the trial court martial to the Court of Appeal in Suit No: CA/A/601C/2016. In a unanimous Judgment delivered on 16th July 2018, the Court of Appeal set aside the decision of the trial court Martial and its confirmation by the Navy Board as follows per Abdu Aboki JCA:

 

From all that I have said above and not withstanding that issue 4 is resolved in favour of the Respondent, against the Appellant, there is merit in this appeal and it is hereby allowed.

 

The part of the decision of the trial Court martial appealed against and its confirmation by the Navy board is hereby set aside. The Appellant is hereby discharge (sic) and acquitted. Also the Respondent is ordered by this Court to restore the Appellant to his Rank of Commodore.

 

There shall be no order as to costs.

 

[23] The Defendants filed an appeal to the Supreme Court, Suit No: SC/1077/2018C. There was no stay of execution of the Judgment of the Court of Appeal as revealed by the affidavit evidence of the parties. The Claimant still remained on the sentenced rank of Captain despite the Judgment and order of the Court of Appeal made on 16th July 2018 that his rank of Commodore be restored. This is clearly evident in the letter (Exhibit C annexed to the Claimant’s further affidavit) written by the Defendants on 16th December 2022 notifying the Claimant of his promotion to the flag rank of Commodore. The letter i reproduced as follows:

           

NOTIFICATION OF PROMOTION TO THE FLAG RANK OF COMMODORE

Reference:

A.    NHQ: 02/214A/03/21/NS/VOL.XVIII/731 dated 26 Sep 22.

 

1. The Senior Officers Promotion Board 2-2022, convened vide Reference A, considered you among other eligible officers for promotion from the rank of Captain to the flag rank of Commodore. Accordingly, I am directed to convey the Navy Board’s approval of your promotion to the flag rank of Commodore with effect from 17 September 2019.

 

2. While congratulating you on your well deserved promotion, please not that your elevation in rank is testimony of your hard work, dedication to duty and the trust the Service places on you. Furthermore, this promotion is also coming at an auspicious time, when more than ever before the Service expects more from you. Thus, you are expected to display unflinching patriotism and loyalty to the nation in all your endeavours as you shoulder more demanding responsibilities.

 

3. Once again, congratulations and ‘Onward Together’.

 

S.K. Ibrahim

            Rear Admiral

            For Chief of the Naval Staff

 

[24] The Defendants in the counter affidavit and particularly paragraph 40 and 41 state as follows:

 

40. The Defendants deny paragraph 13 of the Claimant’s affidavit and in response state that though there was a pending appeal at the Supreme Court, the Claimant’s rank was restored in line with the Court of Appeal judgment in 2022 after the requisite administrative processes for the restoration to the rank of Commodore were followed and observed.

 

41. That the Claimant’s rank was restored pending the hearing and determination of the appeal before the Supreme Court of Nigeria in line with the judgment of the Court of Appeal. 

 

[25] The letter written by the Defendants speaks for itself. It is a letter promoting the Claimant to the rank of Commodore in year 2022; the rank that he had already attained on 21st September 2014, and his rank when he was court martialled by the Defendants in January 2016. The words promotion and restoration convey different meanings in the English Language. How can learned defence counsel submit in paragraph 3.8 of the written address that this letter of “promotion” written in year 2022 is in compliance with the 16th July 2018 Judgment of the Court of Appeal to “restore”? It is clear from Defendants letter of promotion that the order of the Court of Appeal to restore the Claimant to his rank of Commodore was not obeyed, in spite of the fact that there was no order staying the execution of the Judgment. I find from the affidavit evidence that the Claimant remained on his sentenced rank of Captain, and continued to serve the punishment for an offence the Court of Appeal had discharged and acquitted him of.

 

[26] The law is settled that an appeal does not operate as a stay of execution, until a prayer for stay of execution is made and the order to stay the execution of the judgment is obtained, see Zenith International Bank Ltd v Alobu (2017) 4 NWLR (Pt 1554) 135 at 146 Paras G-A. Furthermore, Section 24 of the Supreme Court Act CAP 424 LFN 1990 expressly states that an appeal shall not operate as a stay of execution, but the Supreme Court may order a stay of execution either unconditionally or upon the performance of such conditions. This provision is applicable to appeals from the Court of Appeal to the Supreme Court; and shows that the appeal of the Defendants to the Supreme Court does not automatically suspend compliance with the Judgment and Order of the Court of Appeal, and its enforcement. There was no stay of execution of the Judgment of the Court of Appeal delivered on 16th July 2018. The Claimant wrote the Defendants on 9th October 2018 (Exhibit Dion C) through his Solicitors informing them of the need to obey the order of the Court of Appeal and to reinstate him but they failed to comply with the order.

 

[27] A Judgment of a court of competent jurisdiction remains valid and binding even where the persons affected by it believe that it is wrong, until it is set aside by a court of competent jurisdiction. The position is that a person (and in this instance the Defendants) who knows of a judgment against him by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it until the judgment has been set aside. The Defendants knew of the Judgment delivered by the Court of Appeal on 16th July 2018. They filed their appeal against the Judgment in 2018 as seen in the  number assigned to the appeal in the Supreme Court, Suit No:SC/1077/2018C.

 

[28] There is a presumption of correctness in favour of a court’s judgment. Unless, and until that presumption is rebutted on appeal, and the Judgment is set aside, it subsists and the persons affected by it must obey it, see Babatunde v Olatunji (2000) 2 NWLR (Pt 646) 557 SC, Purification Technique Nig Ltd v Rufai Jubril (2012) 18 NWLR (Pt 1331) 109 at 139 Para G, PDP v Okorocha (2012) 15 NWLR (Pt 1323) 205 at 256 Para D. It is therefore not a matter of debate that an order of any court should be respected and not disobeyed, more so the orders of the Appellate Courts. The Defendants being a creation of law have a duty to obey the Judgment of the Court of Appeal, but refused to do so.

 

[29] A person ordered by a court to do any act is bound to do so immediately the order is pronounced. The well laid down position of the law is that anyone who is served with, or becomes aware of a valid order of court should ensure that he/she obeys it in full. Failure to obey a valid court order amounts to willful breach of it which could lead to contempt proceedings with serious consequences, see Uwazuruike v Attorney-General Federation (2013) 10 NWLR (Pt 1361) 105, Zenith International Bank Ltd v Alobu supra. By the Judgment and Order of the Court of Appeal, the Defendants were to immediately restore the Claimant to the rank of Commodore having been discharged and acquitted by the Court of Appeal. The Defendants failure to restore him to his rank of Commodore in compliance with the Judgment of the Court of Appeal clearly put him at a disadvantage among his peers in the Service in terms of seniority. His written appeals to the Defendants were not heeded.

 

[30] Now, the Supreme Court in a unanimous Judgment delivered on 12th July 2024 in Suit No: SC/1077/2018C dismissed the appeal of the Defendants in the following words per Obande Festus Ogbuinya, JSC:

On the whole, having resolved the two live issues against the appellant, the destiny of the appeal is obvious. It is bereft of any crumb of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, the decision of the lower court delivered on the 16th July, 2018 in Appeal N0.CA/A/601C /2016, which set aside the decision of the trial court, delivered on the 29th June, 2016, is, hereby affirmed.

The Supreme Court having affirmed the Judgment of the Court of Appeal, the Order of restoration is to the Claimant’s pre-trial Rank of Commodore in the Nigerian Navy and this includes the payment of his full salaries and allowances as Commodore, as well as accrued benefits with effect from 27th September 2016, the day the Navy Board confirmed the punishment handed down by the special court martial.

 

[31] The Claimant is rightly aggrieved that he was not considered for promotion to the rank of Rear Admiral in 2022 due to the Defendants refusal to restore his rank of Commodore as ordered by the Court and seeks an order compelling the Defendants to restore him to the rank of Rear Admiral. Learned counsel to the Defendants has referred extensively to provisions of the Armed Forces Harmonized Terms and Conditions of Service (HTACOS) in his submissions but has not placed the terms and conditions of service (HTACOS) in evidence before the Court to enable a determination based on the HTACOS. It is the law that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011, see Inua v F.B.N. Plc (2016) 1 NWLR (Pt 1495) 89, Uwah v. Akpabio [2014] 7 NWLR (Pt. 1407) at 489. In the absence of the Armed Forces Harmonized Terms and Conditions of Service (HTACOS), all references to it are discountenanced.

[32] The law is settled that promotion from one level or position to another in an establishment/organization is not a right but a privilege that is earned. An employer cannot be compelled to promote an employee no matter the good opinion the employee might have of himself. Promotion is therefore at the discretion of the employer and in this instance the Defendants, see Nwoye v Federal Airports Authority of Nigeria (2019) 5 NWLR (Pt 1665) 193 at 218 Paras B-C. The Court is not the employer, and cannot override the Defendants discretion on promotion. However, fair consideration for promotion when qualified is a right, and a vindictive denial of promotion amounts to an unfair labour practice, see Mrs Abdulrahaman Yetunde Mariam v University of Ilorin Teaching Hospital Management Board (2013) 35 NLLR (Pt.103) 40.

 

[33] In this instance, the failure and/or refusal of the Defendants to obey the order of the Court of Appeal to restore the Claimant to his rank of Commodore clearly put the Claimant at a disadvantage in the Service. In 2022, instead of being considered for promotion to a rank higher than Commodore, the Claimant was considered by the Defendants “among other eligible officers for promotion from the rank of Captain to the flag rank of Commodore”, as stated in the notification of promotion letter (Exhibit C). This is a rank the Claimant had already attained in 2014, and the Defendants ordered to restore on 16th July 2018. The Claimant was still being punished by the Defendants, and serving the sentence of reduction in rank from Commodore to Captain meted out on him;   and he lost his seniority in the Service despite his pleas to the Defendants that his rank be restored as ordered by the Court of Appeal. The action of the Defendants is clearly contemptuous of the decision of the Court of Appeal.

 

 [34] The Claimant has complained that while the Defendant’s appeal was pending in the Supreme Court, he was served with a notice of voluntary retirement in June 2023. In paragraph 17 of his affidavit he states that he wrote a letter of appeal dated 20th July, 2023 (Exhibit A) to the 3rd Defendant to resolve the issue at the Supreme Court and grant him fairness and justice before considering him for retirement. The Defendants admit this in paragraph 60 of their counter affidavit as follows:

60. In furtherance to the above paragraph, the Defendants state that the letter dated 20th July, 2023 by the Claimant’s Solicitor making a passionate plea to the Defendants to resolve the issue at the Supreme Court is of no moment as the matter at the Supreme Court had no relationship with the Claimant’s retirement which was as a result of his junior becoming the Chief of Naval Staff thereby necessitating the retirement of everyone who was commissioned before the Chief of Naval Staff as at then.

[35] The Claimant by letter dated 19th September 2023 received a letter of approval of his voluntary retirement (Exhibits Dion E). The Claimant asserts that he was forcefully retired in the rank of Commodore instead of Rear Admiral, as a result of the failure of the Defendants to restore him to his original rank of Commodore as ordered by the Court of Appeal. The Claimant was never considered for promotion to the rank of Rear Admiral which is the prerogative of the Defendants as stated earlier. The law recognizes voluntary and compulsory retirement. In the world of work as well as labour/employment law, voluntary retirement is understood only in terms of the employee taking the decision to retire unhindered by the employer. A voluntary retirement is the act of the employee, and not the employer’s see James Adekunle Owulade v Nigerian Agip Oil Co. Ltd (unreported) Suit No. NICN/LA/41/2012 Judgment delivered 12th July 2016.

[36] The Claimant was by the notice of voluntary retirement (Exhibit Dion D) informed that members of 39RC had been appointed as Service Chiefs, and this had created a personnel structural imbalance. He was directed to proceed on 90 working days leave and signify his intention to retire voluntarily from the service with effect from 27 October 2023. The letter of retirement (Exhibit Dion E) states that his retirement is “predicated on the provisions of Condition 03.10 (a) of the Armed Forces of Nigeria HTACOS Officers 2017 (Revised) which stipulates that an officer shall be eligible to apply to retire if he has served for at least 15 years of commissioned service subject to regulation in force.” The Claimant’s letter of appeal to the Chief of Naval Staff referred to above is evidence that he did not make a decision to retire voluntarily during the pendency of the Defendants appeal in the Supreme Court. The Claimant’s retirement is not his voluntary act, but the act of the Defendants.

[37] The effect of the compulsory retirement during the pendency of the Defendants appeal at the Supreme Court suit was to foist a fait accompli and render any decision of the Supreme Court nugatory. The contemptuous attitude of the Defendants to the resolution of their pending appeal in the Supreme Court is evident in the statement in the counter affidavit that: “making a passionate plea to the Defendants to resolve the issue at the Supreme Court is of no moment as the matter at the Supreme Court had no relationship with the Claimant’s retirement.” This instant suit by the Claimant is a cry that he should not be denied the justice given to him by the Court of Appeal on 16th July 2018, and affirmed by the Supreme Court on 12th July 2024. Consequently, all the arguments of learned defence counsel that this suit is an abuse of the process of court because it was instituted during the pendency of the Defendant’s appeal, and that it is an academic exercise are rejected in light of the Defendants willful disobedience of the Judgment of the Court of Appeal, affirmed by the Supreme Court. It is the principle of equity that a court ought not to allow a person to take advantage of his own wrong doing, or use it as a means of attack, see Fidelity Bank Plc v Sagecom Concepts Ltd (2025) 9 NWLR (Pt 1994) 435 SC, Egbo v Candid (2023) 16 NWLR (Pt 1911) 417 CA. He who comes to equity must come with clean hands.

[38] The disobedience of the Defendants to the Judgment of the Court of Appeal is already established, and amounts to contempt of court. The Supreme Court in Military Governor Lagos State & Ors v Chief Emeka Odumegwu Ojukwu (1986) 1 NWLR (Pt 18) 621 (SC) condemned the flagrant disobedience of orders of court stating that no person or authority, no matter how highly placed, is entitled to treat a court order with levity. The rule of law presupposes that the Defendants are subject to the law; and that the Judiciary is a necessary agency to the rule of law. The law is no respecter of persons (natural and artificial), organizations, government, principalities, or powers. The Judiciary cannot shirk its responsibility to the nation to maintain the rule of law. It is in the interest of both parties, and the public that the law should be even handed. The court system cannot be maintained without the willingness of parties to abide by the findings and orders of a competent court until reversed on appeal; and in this instance, there was no reversal, but an affirmation by the Apex Court in the land.

[39] Disobedience to a court order undermines the rule of law and jeopardizes public confidence in the Judiciary. The bottom line is that disobedience to an order of court is contempt, an affront to the rule of law and a serious judicial offence. The duty of this  Court in light of the disobedience and contemptuous attitude of the Defendants to the Judgments and Order of the Court of Appeal and Supreme Court is to uphold the rule of law, and ensure that public confidence in the Judiciary is not eroded by taking the following actions:

(i) Protect the authority and dignity of the Supreme Court and the Court of Appeal; 

(ii) Enforce obedience to the subsisting order of the Court of Appeal; and

(iii) Make appropriate punitive compliance sanctions, and enforce same, pursuant to the provisions of Section 287 of the 1999 Constitution (as amended), and on the authority of Military Governor Lagos State & Ors v Chief Emeka Odumegwu Ojukwu supra, Vaswani Trading Co v Savalakh & Co (1972) 12 SC 77.

[40] The Defendants are a constitutional and statutory creation, and are expected to be law abiding. They therefore have a duty to restore the Claimant’s pre-trial Rank of Commodore in the Nigerian Navy with effect from 27th September 2016 in its records as ordered by the Court of Appeal, and affirmed by the Supreme Court; and also to pay him all of his outstanding arrear of salaries, and allowances on the rank of Commodore up until September 2022 when he was “purportedly promoted”. The Defendants are ordered to do this within 60 days; failing which the Defendants shall be liable jointly and severally to pay damages to the Claimant in the sum of N300,000,000.00 (Three Hundred Million Naira) pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006.

[41] I answer the questions as follows:

Question a: No. The reason stated by the Defendants in the notice of retirement does not constitute an unfair practice because Superiors by custom and policy are expected to retire on the appointment of their juniors as Service Chiefs.

Question b: No. The Claimant is not entitled to be re-instated to the Nigerian Navy having been compulsorily retired.

Question c: No. The Claimant cannot be reinstated.

Question d: Yes. The Defendants are bound to restore the Claimant’s rights and privileges as Commodore. He was not promoted to the rank of Rear Admiral.

[42] For all the reasons given above and for the avoidance of doubt, I make the following orders:

1. The Defendants are hereby ordered to restore the Claimant’s pre-trial Rank of Commodore in the Nigerian Navy with effect from 27th September 2016 in its records as ordered by the Court of Appeal, and affirmed by the Judgment of the Supreme Court; and pay him all of his outstanding arrears of salaries and allowances up until September 2022, within 60 days.

2. The Defendants are ordered to pay the Claimant his terminal benefits on the rank of Commodore, within 60 days.

3. Upon failure to comply with the Orders in 1 and 2 above, the Defendants shall be liable, jointly and severally, to pay the Claimant damages in the sum of N300,000,000.00  (Three Hundred Million Naira).

3. Costs in the sum of N5,000,000.00 (Five Million Naira) awarded the Claimant.

Judgment is entered accordingly.

 

                                                ______________________________

                                                Hon Justice O.A. Obaseki-Osaghae