IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

 DATE: 16^th February, 2022

SUIT NO NICN/MKD/08/2018

BETWEEN

CORPORAL AJALA TAJUDEEN -----------------------------------------CLAIMANT

 

                                                                        AND

1.      CHIEF OF ARMY STAFF                                      

2.      NIGERIAN ARMY                                                  ----------- DEFENDANTS

3.      COL. MOHAMMED NURA INUWA                    

(Batalion Commander, 72 Special Forces Batallion    

Makurdi)

 

                                        JUDGMENT.

The claimant commenced this suit by an originating summons which was latter converted to a complaint dated the 6/11/2019 and filed on  the 7/11/2018.  In the complaint, the claimant seeks the following reliefs.  

1.      An order quashing· the purported dismissal of the claimant from .service.

2.      An order reinstating the claimant to his full status as an officer of the 2^nd defendant.

3.      General, aggravated or exemplary damages of N50,000,000 (Fifty Million Naira) only.

Filed along with the complaint is the claimant statement of facts, witness deposition of the claimant and a list of front loaded documents.

Upon being served with the complaint the defendant with the leave of court, filed a joint statement of defence on the 6/3/2020. On the 25/3/2021the defendants filed a witness statement on oath of their sole witness upon being granted leave to substitute the defence witness. Hearing in this suit commenced on the 18/2/2021. The claimant  Corporal Tajudeen Ajala testified as CW1. He tendered the following documents in evidence;

1.      Notification of selection for training, marked exhibit C1.

2.      Certificate of Regular Recruit intake, marked exhibit C2

3.      Certificate of Unit Cadre, marked exhibit C3

4.      Certificate of Nigerian Army Education Scheme, marked exhibit C4

5.      Certificate of Special Forces Training, marked exhibit C5

6.      Certificate of Nigerian Army School of Military Engineering, marked exhibit C6

7.      Document of promotion, marked exhibit C7a and C7b

8.      First bank statement of account, marked exhibit C8

9.       Solicitor’s letter of petition, marked exhibit C9

10. Committee of Friends monthly thrift document exhibit C10

11. Nigerian Army payroll system, exhibit C11.

CW1 was cross examined and there-after closed his case, The defence open their case on the  25/10/2021. Capt. C. M. Ugbe of 401 Special Forces Brigade, Nigerian Army Markurdi testified as the sole witness for the defence. He tendered the following documents in evidence;

1.      Military Police investigation report, marked as Exhibit D1.

2.      Two charge sheet of summary trial of Corporal Tajudeen Ajala. Marked as Exhibit D2 and D3.

3.      Legal Review of petition for re-instatement, marked as exhibit D4.

4.      Legal Review of military police investigation report, marked exhibit D5

5.      Statement of Samaila Nuhu marked as exhibit D6.

DW1  was cross examined by the claimant counsel and thereafter the defence close their case.  Counsel un-behalf of the parties adopted their final written address on the 10/1/2022.

BRIEF STATEMENT OF THE FACTS.

The claimant story is that he was enlisted into the Nigerian Army the 3^rd  June, 2004 on the rank of Private Soldier. He underwent several trainings and was later promoted to the rank of Lance Corporal. The claimant was deployed as a security operative in Operation Zenda (a joint security outfit set up by the Benue State government, comprising of Army, Air force and Police Officers) on the 1/08/2017 as a driver for the month in Otukpo, Benue State. Because there was no vehicle attached to the unit the claimant had to use his private vehicle to convey his team of 5 soldiers  from Makurdi to Otukpo. On the 20/8/2017, while on duty at a security check point at Otukpo on the Makurdi- Enugu expressway, the driver of a trailer loaded with cement traveling from Enugu to Makurdi, refused to stop for security check. The claimant managed to stop the truck and the driver come down and attacked the claimant while the truck conductor used the truck to block the high way. Other truck drivers who came on the scene surrounded the claimant and mobbed the claimant and tried to collect his service rifle from him. In the course of the mob, dragging the claimant’s rifle with him, the safety catcher of the rifle went off and a bullet was discharged, which hit the first truck driver on the right thigh. The claimant was beaten to bulb and was rescued by a police sergeant who secured his rifle. He latter regained consciousness at Royal Hospital Otukpo after sustaining several injuries. He was later transferred to Military Hospital at 72 SF Battalion, Makurdi. When the Operation Zenda Commander, Lt. Kabiru came to visit the claimant on his hospital bed. The claimant narrated what happened. He was made to pay the feeding and hospital expenses of the injured driver. On the 22/09/2017, when the claimant thought the incident had been closed upon the payment made by him in the sum of N.72, 000.00, the Brigade Military police informed him that a formal charge has been laid against him. A thorough investigation was conducted after which he was not found culpable and the 707 Brigade Military Police declined to charge the claimant for any offence. However on the 25/09/2017, the Claimant was made to appear before Major Umar (Company Officer) to answer charges of disobedience to standing Battalion Order for using his private car on duty. The charge was said to have been brought against the claimant by Lt. Kabiru (Operation Zenda Commander). On the 06/12/2017 two months after the claimant had appeared before the Major Umars summary trial, Lt. Kabiru, the Operation Zenda Commander again arraigned the claimant before another summary trial presided by himself. This time around the claimant was charged with another offence of assault, and at the end Lt. Kabiru also referred the case to the Commanding Officer (3^rd defendant). Later the same day, i.e. 06112/2017, one Capt. A.E.Morakinyo, the Battalion Adjutant, also convened the claimant summary trial on the same charge that he has been tried by Lt. Kabiru, and Morakinyo, like Major Umar and Lt. Kabiru, also referred the case to the Commanding Officer,( 3^rd defendant). The claimant states that in each of these proceedings, the claimant was not given sufficient time to defend himself as proceedings lasted for less than 10 minutes in each case. Again on 1 l / 12/2017, the claimant was summoned to appear before the Commanding Officer of 72 SF Battalion, Col. Mohammed Nura lnuwa, (the 3rd defendant.), on a two charges of, (1) disobedience to standing battalion order and (2) assault. The 3^rd defendant found the claimant guilty of the first charge and punished him with reduction in rank from Corporal to Lance Corporal, and on the second charge, of assault, after furnishing his explanation, claimant was found guilty and the punishment was dismissal from service. The whole trial lasted from 2:30pm to 3pm, during which the claimant was not afforded the right to call a lawyer to defend him and was also not given the option either to be tried by a court martial or a summary trial.  During the summary trial above, the driver of the truck that had being injured by the discharge of the bullet in the course of the struggle with the riffle was not called to testify, and none of the officers who witnessed the incident was called to testify against him. He was not given opportunity and sufficient time to prepare his defence. That the claimant was denied access to the minutes of the summary trials, if any on the 25/9/2017, 06/12/2017 and 11/12/2017, as well as the report of the military police on his case, even though he demanded for them before and after this case was filed.  He was never served with any written charge before during or after the summary trials. He was photographed in his uniform while holding a card board paper carrying the inscription “dismissed” across his chest. From the venue of the summary trial, in the 3^rd defendant’s office, claimant was escorted to his house in the barracks his belongings were immediately removed from his house in the barracks and thrown out in the main road in full view of everyone, including his wife and children. His belongings and his family were hurled into a waiting pick up van and driven to Lafia Garage North Bank, Makurdi, where there deposited by the roadside.

The claimant appealed against the sentence on the grounds that a soldier cannot be dismissed from service by a summary trial and the offence of disobedience to a standing order and assault does not attract the punishment of dismissal. The call for a review of the summary trial was never done by the 2^nd defendant. This is the brief facts of the claimant’s case.

The defendant’s case is that the Claimant was among the personnel detailed to Otukpo- Enugu location as driver on the 20^th August, 2017. Upon resumption at his duty post in Otukpo, the claimant against the Battalion Standing Order guiding all military personnel in any operation they are detailed for, went with his private car to his duty post. While at the duty post (checkpoint) at about 2200hrs, he stopped an incoming loaded truck going toward Otukpo axis and demanded for money from the driver of the truck which the driver refused to give him. This led to an argument between the claimant and the driver that the claimant broke the side mirror of the truck. This further led to a more serious altercation between the claimant and the driver (Samaila Nuhu) and the claimant now fired and shot the driver on his two laps. Other trucks drivers and their conductors who were there mobilized and beat up the claimant to stupor and he was only rescued by some security agents who were passing and rushed the claimant and the injured driver to a nearby hospital (Royal Specialist Hospital Otukpo) where they were first treated and later transferred to 707 Special Forces Brigade Medical Centre for another treatment in the military hospital in Makurdi. An investigation was conducted by the Military Police into the alleged offence committed by the claimant who based on their investigation report submitted to the Command recommended that the claimant be charged with, (a) Disobedient to Standing Order punishable under section 57(2) of Arms Forces Act (AFA Cap A20) LFN 2004 of being in possession of his private car on IS OP thereby disobeying 72 SP BN SOP and general instructions for conducts of troops on IS OP. (b)that Cpl Ajala Tejudeen should be made to pay the medical bil1 of the victim spent at the Royal Specialist Hospital. The Command forwarded the investigation report of the Military Police to the legal unit of the command who further reviewed the investigation report of the Military Police and further recommended that the Claimant be charge for Assault and Disobedient to Standing Orders. The Command based on the recommendation of the Legal Unit, summarily charged the Claimant for two count charges i.e ( 1) Disobedient to Standing Order under section 57 (2); and (2) Assault under section 104 (2) of the Arms Forces Act respectively- For the offence of disobedient to Standing Order, the claimant was summarily tried by Commanding Officer M. N. Inuwa on the 11^th December, 2017 and was convicted  of the two counts and awarded the punishment of reduction in rank to Corporal. While on the offence of assault, the claimant was summarily tried by Commandant M. N. Inuwa on the 11^th December, 2017 and upon  his conviction, he was dismissed from the army. The claimant appealed against the sentence. In response to the appeal the Legal unit of 72 Special Forces Battalion, reviewed the claimant petition against the sentence and affirmed the decision reached by the commanding officer. The defendants deny that the claimant was never discharged by the 707 military police. They also deny that the claimant was not given fair hearing. The defendant state further that claimant is not up to the rank of Officers or Warrant Officers as provided under section 117 of the Armed Forces Act, LFN 2004 to be given the options to elect either to be tried by Court Martial or Summary trial. However, the Battalion Commander exercised his power under the Section 116(b) of the Armed Forces Act and summarily tried the claimant. It is the contention of the defendant that the charge was read to him in English and he understood the charge and pleaded guilty. That claimant was given the full opportunity to defend himself. It is also the defendant’s position that Major Umar heard the claimant under an army procedure called “Orders” and referred him to higher authority. The same procedure was used by Capt. Morakinyo and Lt. Kabiru respectively and all were referred to Col. Mohammed Nura lnuwa who has the power to summarily try the claimant and dismiss him as provided under Section 116 ( 1) (b) of the Armed Forces Act, LFN 2004. That the claimant was never subjected to more than one trial but was simply being referred from one officer to a more superior officer who has the power in accordance with the Act to try and punish him adequately for the offences charged. This represents the contending facts in issue in this action.

In his final written address filed on the 18/11/21 the defendant submitted a sole issue for determination i.e.

‘Whether from the evidence before this Honourable Court, the Claimant has successfully proved that his summary trial and consequential dismissal from the Nigerian Army on 11^th December, 2017 was not in accordance with the applicable statute’?

On the other hand the claimant in his final written address submitted three (3) issues for determination to wit;

1.      Whether or not by the provisions of sections 57, 104 and 116 of the Armed Forces Act (supra), read together with Section 36(8) of the 1999 Constitution and other provisions of law, the 3rd defendant was entitled to impose a punishment of dismissal on the claimant, above the punishment prescribed for the specific offences, in view of the fact that claimant was charged in a summary trial proceedings rather than a court martial.

2.      Whether the entire proceedings leading to the purported dismissal of the claimant from the service of the 2^nd  defendant were a nullity, having regard to the constitutional and statutory provisions, particularly sections 117, 123, 127 of the .Armed Forces Act, Section 36 {6) {c) and 36 {8) of the 1999 Constitution.

I have carefully considered the issues submitted for determination in this suit, I am of the view that the issue formulated by the claimant counsel would involve the consideration of the extant statutory provisions sought to be considered in the two issues formulated by the defendant reproduced above. To this end the court considers that the issue for determination should be.

Whether the summary trial and consequential dismissal of the claimant from the 2^nd defendant (The Nigerian Army) was in compliance with the Armed Forces Act and other extant laws and regulation.

The claimant contention is that the two offences for which the claimant was charged i.e. disobedience to standing order and unlawful force or violence which are created by section 57 and section 104(1) of the Armed Forces Act are not offences for which the claimant ought to have been tried summarily. Rather the claimant ought to have been tried by a court martial. The charge sheet were tendered by the defendant and marked as Exhibit D2 and D3. The claimant argues that the punishment or sentence of reduction in rank and dismissal which was passed on the claimant pursuant to the provision of section 116 of the Armed forces Act was wrong as those punishments could only be imposed in a summary trial. He argued further that even where an officer is tried summarily, the general provisions of section 116 on punishment can only be applied with particular reference to punishment prescribed for each offence under part XII i.e. (section 45-114 which creates the different offences). He argued that particular provisions in a statute override general provisions, and cited the case of Schroder V. Major [1989] 2 NWLR (Pt. 101) 1 at 21, F-H. 19, D-G. See also Kraus Thompson Vs. NIPSS [2004] 121 LRCN 5011 at 5025 & 5026.

He argued that the punishments for the respective offences for which the claimant was summarily charged are provided under Sections 57 and 104(1) of the Act. The defendants were therefore bound to- impose punishments that were prescribed in the specific sections under which the claimant was charged. That a look at sections 57 and 104 of the Act shows that there is no provision for dismissal from service for any of the offences for which the claimant was charged. The uniform punishment provided for each of the offences are ‘imprisonment for a term not exceeding two years or any less punishment provided in this Act’ That the imposition of reduction in rank and dismissal from service was therefore, outside the purview of sections 57 and 104 of the Act, and such punishment was in violation of section 36(8) and (12) of the 1999 Constitution as amended. The claimant counsel also argued that it is not every offence under part XII that can be tried summarily as provided under the provisions of section 126(6) of the Armed Forces Act which provides that:

Commanding officer shall not deal summarily with a charge under any of the following sections of this Act, that is

(a) Sections 45, 46, 47, 48, 51, 52, 53, 65, 66, 67, 69,  70, 71, 72, 73, 75, 76, 83, 88, 91 and 93;

(b) Sections 95 and 98 so far as they are applicable to an offence under any of the provisions mentioned in paragraph (a) of this subsection.

Counsel argued further that by the provisions of section 118 and 119 the punishment of dismissal can only be meted out upon a Court-Martial. Had the lawmaker intended to vest the Summary Trial with the same powers of dismissal from service as a court martial, it would have been expressly stated in the general punishment section 116 of the Armed Forces Act. The express mention of “dismissal with disgrace and dishonour” and “dismissal from the Armed forces” in sections 118 and 119 of the Armed Forces Act indicates clearly that the lawmaker only intended the said punishment to be meted out by the court-Martial in deserving cases.

In response to this argument, the defendant counsel in his final written address has argued that by the combined effect of section 123 and 124 (2) (5) and (6) of the Armed Forces Act 2004, the Commanding Officer of a battalion has the power to summarily try a service personnel alleged to have committed an offence (safe the offences listed in section 124(6). Counsel posited that by section 124(5) the phrase ‘dealing summarily with the charge’ includes ‘determining whether the accused is guilty” and “where the accused is guilty, record a finding of guilty and award punishment”, which are what the Commanding Officer did in the case of the Claimant. Counsel argued further that by virtue of Section 124 ( 6) of the Act, a Commanding Officer has the Power to deal summarily with all offences under the Act except the offences listed in paragraphs (a) and (b). In the instant case, the two (2 ) count charges for which the claimant was summarily tried, found guilty and awarded punishment by the Commanding Officer are (1) Disobedient to Standing Order punishable under Section 57(2) of Armed Forces Act Cap A20 the Laws of the Federation of Nigeria 2004. (2) Assault punishable under Section 104(1) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria 2004. These offences are not listed in Section 124 ( 6 )(a) or (b) and therefore within the summary trial jurisdiction of the Commanding Officer. Counsel submitted that summary trial, conviction and consequential punishment of dismissal of the Claimant by the Commanding Officer for the offences was within the summary disciplinary powers of the Commanding Officer and was properly exercised. As regarding the punishment of dismissed regiment (dismissal from the Nigerian Army) awarded against the Claimant by the commanding officer on 11^th December, 2017 upon a finding of guilty as charged on both counts, counsel submit that by the provisions of Section 116( 1 )(b )(i) of the Act, the Commanding Officer of the Claimants battalion (Battalion Commander) has the power to summarily try an accused soldier of the Claimant  rank (Lance Corporal) and award the punishment of dismissed regiment ( dismissal from service) to the Claimant. That by virtue of section 289 of the Armed Forces Act 2004 and the third schedule to the Act which list the claimant’s rank as a Lance Corporal having been reduced from Corporal which is below the Rank of Corporal, the claimant came within the Battalion Commander’s power to award a punishment of dismissal by virtue of section 116(1)(b)(i) of the Act. Counsel argued that the summary trial and consequential dismissal of the claimant from the Nigerian Army by the 2^nd defendant on 11^th December, 2017 was in accordance with laid down legal procedures and extant law regulating the claimant’s employment with the 2^nd Defendant. As such enjoys legal presumption of validity, until the contrary’ is proved by the party who alleges a contrary position, as provided in Section 168( 1) of the Evidence Act 2011. Counsel cited the case of Jerome Akpan & Ors V. The  State (2002) 12 NWLR (Pt. 780) pg. 149@ 202 Paras A-8

 

COURT DECISION.

I have carefully read and elucidated the argument of counsel for the parties as adumbrated in their final written addresses. By exhibit D2 and D3, The claimant was charged with two counts;

1.      DISOBEDIENT TO STANDING ORDER. Punishable under section: 57 (2) of Armed Forces Act CAP A20 laws of the Federation of Nigeria 2004

2.      . ASSAULT. Punishable under section 104 (2) of Armed Forces Act CAP A20 laws of the Federation of Nigeria 2004

Section 57 of the Armed forces Act dealing with disobedience to standing order provides;

(1)             A person subject to service law under this Act who contravenes or fails to comply with a provision of an order to which this section applies, being a provision known to him, or which he might reasonably be expected to know, is guilty of an offence under this section and liable, on conviction by a court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act. (underlining for emphasis)

 

(2)             This section applies to standing orders or other routine orders of a continuing nature made for any formation, unit or body of the troops or for any area, garrison or place, or for any ship, train or aircraft.

 

Also section 104(2) of the Armed Forces Act dealing with the offence of ‘assault’ provides;

(2)  Any person subject to service law under this act who-

(a) Unlawfully assaults another person with a dangerous weapon or
     other means of force likely to cause death; or

(b) Unlawfully assaults another person and thereby does him grievous
      harm is guilty of aggravated assault and liable, on conviction by a
      court martial, to imprisonment for a term not exceeding seven
      years or any less punishment provided by this Act.

From the sections reproduced above it is clear that the provisions under which the claimant was charged appears to be a specific provision of the Act which creates the offences, prescribes the punishment and also prescribes the kind of trial to be adopted in the trial of the offences. The claimant counsel has argued that the claimant ought not to have been tried summarily but by court martial. The defendant counsel contention is that by the provisions of Section 116( 1 ) of the Act, the Commanding Officer of the Claimants battalion (Battalion Commander) has the power to summarily try an accused soldier of the Claimant  rank (Lance Corporal), This is so because by the provision of section 124(6) (a) and (b) of the Act the section in which the claimant was charged is not listed as one of the section in which the Commanding Officer is prevented from dealing summarily with a charge. The argument put forward by the defendant counsel on this issue cannot represent the correct position of the law. As earlier noted sections 57 and 104 are very specific provisions of the Act which creates the offence, prescribes the punishment and prescribes the manner in which the offences are to be tried. It does appear that why sections 57 and 104 is not mentioned in section 124(6) which states the sections which the Commanding officer cannot deal with offence summarily is because the manner of trial of offences under sections 57 and 104 has already been prescribed in those sections.  The option to decide whether an accuse is to elect whether to be tried by way of summary trial or by court martial under section 117 of the Act does not arise when a charge is brought under sections 57 and 104 of the Act. Thus, section 117 has no application to sections 57 and 104. The implication of this is that the general provision in section 116(1) cannot override the specific provisions of sections 57 and 104 of the Armed Forces Act 2004. Even if there were to be a conflict which I cannot find any, the specific provision must prevail over the general provision. This position has been enunciated in a plethora of cases. The supreme court took time to explain the rule of construction in the case of Attorney General of Lagos State V. Attorney General of  the Federation & Ors [2014] LPELR-22701 (SC) the Supreme Court has this to say;

The applicable principle of interpretation in this instance remains what Bairamian J. (as he then was) in delivering the lead judgment of the West African Court of Appeal in Mrs F. Bangboye V Administrator General [14 WACA] 616 at 619 state thus; ‘It is an accepted cannon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regards to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply…The above construction applies equally, of course when the special provision and the general provision are enacted in the same piece of legislation.

In the case of Olusesi V. Fed Republic of Nigeria [2012] LPELR-19949 (CA). The Court of Appeal reiterated the position of the law when it held ‘The general Rule is that specific legislation overrides and excludes general legislation on the same subject matter.’ See also the case of Kraus Thompson Vs. Nipss (2004) 121 LRCN 5011 at 5025 & 5026, the court held that:

In law, any specific provision excludes the general one; a specific enactment is not affected by a subsequent general enactment unless the earlier enactment is inconsistent with the later enactment.

See also the case of Schroder Vs Major (1989) 2 NWLR (Pt, 101) 1 at 21, F·H, 19, D-G.

It is on the strength of above stated authority that this court has come to the conclusion and finds that by the express specific provision in section 57(1) and (2) and section 104 (2) (a) and (b) of the Armed Forces Act 2004, the offence contained in the charge sheet exhibit D2 and D3 which the claimant was charged ought to have been tried by a court martial and not by a summary trial. The trial of the claimant by summary trial was in violation if sections 57(1) (2) and 104(2)(a) and (b). The trial cannot stand the trial is liable to be set aside. Accordingly the summary trial of the claimant conducted on the 11/12/2017 is hereby declared null and void and accordingly set aside.

The claimant in this action also complains against the sentence of dismissal given at the summary trial. The claimant has appealed against the sentence of dismissal in Exhibit C9, on the grounds that a soldier cannot be dismissed from service by a summary trial in an offence of disobedience to a standing order and assault does not attract the punishment of dismissal. The defendant caused a review of the petition and at the end of the exercise the defendant affirmed the sentence of reduction in rank and dismissal in Exhibit D2. In exhibit D4 the reviewing officer recommend among other;

(a) The petition should be disregarded and the dismissal of the petitioner be upheld.

(b) In the alternative to paragraph (a) above, it is specially recommended on  compassionate grounds that the Commander should exercise his command discretion and show magnanimity to the petitioner by varying the punishment to severe reprimand

The defendant chose to go with the first recommendation above. In his final written address the claimant counsel has argued that the punishments for the respective offences for which the claimant was summarily charged are provided under Sections 57 and 104(1) of the Act. The defendants were therefore bound to- impose punishments that were prescribed in the specific sections under which the claimant was charged. That a look at sections 57 and 104 of the Act shows that there is no provision for dismissal from service for any of the offences for which the claimant was charged. The uniform punishment provided for each of the offences are ‘imprisonment for a term not exceeding two years or any less punishment provided in this Act’ That the imposition of reduction in rank and dismissal from service was therefore, outside the purview of sections 57 and 104 of the Act, On the other hand the defendant counsel in his final written address has argued that the Battalion Commandant’s power to award a punishment of dismissal is enforced by virtue of section 116(4) of the Act. Counsel argued that the summary trial and consequential dismissal of the claimant from the Nigerian Army by the 2^nd defendant on 11^th December, 2017 was in accordance with laid down legal procedures and extant law regulating the claimant’s employment with the 2^nd Defendant. As such enjoys legal presumption of validity, until the contrary’ is proved

I have carefully considered the argument put forward by counsels for the parties on this issue. I cannot find any merit in the argument proffered by the learned defendant counsel. As earlier stated in this judgment the specific provision of section 57(1) and (2) and section 104 (2) (a) and (b) of the Armed Forces Act 2004, clearly states the punishment for the offence created in those two (2) sections. The punishments that can be awarded are;

(a)  Imprisonment for a term not exceeding two years or any lesser punishment provided in the Act. For the offence of disobedience of standing order.

(b) imprisonment for a term not exceeding seven years or any less punishment provided by this Act. For the offence of aggravated assault

These provision being specific provisions in a statute must override the general provisions of section 116(1)(b)(i) of the Act.  See the case of  Attorney General of Lagos State V. Attorney General of the Federation’ ‘supra’  This court is in agreement with the position of the claimant counsel that the imposition of reduction in rank and dismissal from service was therefore, outside the purview of sections 57 and 104 of the Act, The commanding officer aired in law when he went outside the purview of sections 57 and 104 of the Act, to impose the sentence of reduction in rank and dismissal which are not punishments that can be awarded under the sections of the Armed Forces Act which the claimants were charged. Accordingly the sentence of ‘Reduction in Rank’ and ‘Dismissal’ cannot stand they are hereby set aside.

The claimant counsel in his written address has argued that under the Armed Forces Act CAP A23 LFN 2004 the claimant was entitled to qualify for pension and gratuity after 15 Years of service. He submitted that the service by enlistment through regular recruitment being pensionable, the employment of the claimant is one with statutory flavour, in respect of which reinstatement can be ordered, as this court had done in previous decisions cited in his final written address. The claimant also claims an order reinstating him back as a full status of an officer in the 2^nd defendant. There is no doubt that the nature of employment between the claimant and the defendant is one that enjoys statutory flavour. In the case of Adeyemi V. Nigerian Telecommunications PLC. [2009]1LPELR-4982 (CA) The Court of Appeal held:

‘Where the Court declares a dismissal letter null and void and ineffectual the appropriate order to make in such circumstances is reinstatement of the public officer particularly if the contract has statutory flavour.’

See also the case of Olatubusun V. Niser. [1988]3 NWLR (Pt. 80) 25.

Shita-Bay V. Federal Civil Service Commission. [1981] LPELR-3056 (SC)

Udo V. Cross River News Paper Corporation. [2001]22 WRN 53.

Having set aside the summary trial of the claimant and the sentence of reduction in rank and dismissal and also having found that the employment of the claimant with the 2^nd defendant was one with statutory flavour.

 

This court has no difficulty in holding that the claimant is entitled to be reinstated as an officer of the 2^nd defendant. Accordingly this court hereby makes an order restating the claimant back to the employment of the 2^nd defendant.  The 2^nd defendant shall re-call the claimant and reinstate him back to the Nigerian Army.

 

The claimant is entitled to damages for all the inconveniences. I award N500,000 general damages against the defendants.

 

The defendants shall pay a cost of N250,000 to the claimant.

 

Judgment is entered accordingly.

 

 

 

  ----------------------------------------------------

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

 

      REPRESENTATION:

M.    L. Ikyaagba Esq. with A. H. Gabriel-Kpum, M. L. Tergarr Esq.  for the    
 claimant

I.        O. Onah Esq. for the defendants.