Army 38: Court Rules that Officers Have Right to Challenge Compulsory Retirement
The National Industrial Court of Nigeria (NICN) sitting in Abuja has ruled that Major General Ijioma Nwokoro Ijioma has the right to challenge his compulsory retirement from the Nigerian Army after serving for 32 years, 11 months and 5 days.
Ijioma is one of the 38 officers of the Nigerian Army who are challenging their forced retirement citing injustice, lack of due process anf fair hearing.
The trial Judge, Hon. Justice EN Agbakoba on Wednesday, ruled against the preliminary objection to the suit filed the Army and the Chief of Army Staff (COAS), Lt-Gen. Tukur Buratai, clearing the way for formal hearing of the case.
To this end, the NIC has fixed February 8, 2018 for hearing in a legal action instituted by General Ijioma against the Nigerian Army, the Chief of Army Staff and two others.
Ijioma is in his prayers before the Court in Suit No: NICN/ABJ/262/2016, seeking for his reinstatement into the Nigerian Army stating that his compulsory retirement did not follow due process and procedure.
Other defendants in the suit are: Minister of Defence and Chief of Defence Staff- the duo were absent in court.
In her ruling, Justice Agbakoba had after considering submissions of counsels to the claimant, Godwin Iyinbor of the chambers of Mike Ozekhome SAN and counsel for the 1stand 4th Respondents, M.D. Owolabi said “General Ijioma has the permission of the court in furtherance of his prayers to challenge the defendants that he be reinstated back to service on the ground that his compulsory retirement did not follow due process as laid down by the Armed Forces Act for an officer of his status”.
His counsel, Barrister Iyinbor, while responding to journalists on Thursday, said the judge cannot rely on Section 178 of the Armed Forces Act as advocated by the defence counsel because the section does not apply to his client who was not an officer any longer as at the time his letter of retirement was handed over to him.
He said, “the judge finds out that as at the time he was retired, he was no longer in active service to be called an officer in the true sense of the law”
Therefore, he said, the Claimant who is challenging the validity of his compulsory retirement from the army after putting in about 33years in services is expected to present its sole witness before the Court on February 8 to establish his case against the defendants.
In his submission before the court, Iyinbor said “There was no justifiable reason(s) for the claimant’s early compulsory retirement as he has not attained the mandatory retirement age for Major Generals in the Army, which is 56 years, as he was only 53 years by 12thJune 2016, and have only served for 32 years, 11 months and 5 days, as against the mandatory 35 years service age for retirement as provided for by Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the Military.”
He prayed that the court compel the Respondents jointly and severally to pay to the him the sum of N1 billion(N1,000,000,000.00) only as general, aggravated, punitive and exemplary damages for the unlawful, wrongful, illegal, unconstitutional and oppressive compulsory retirement and the attendant humiliation, psychological trauma, mental agony and odium caused the him and his family, by the actions of the Respondents.
Ijioma, in his statement of claim, stated that on Friday, June 10, 2016, while at work, he got a text message from one Lt. Col. S. O. G. Aremu, Staff Officer to the Military Secretary in charge of recruitment, deployment, appointment informing him that the Army Council, which sat on June 9, 2016, had retired the Claimant.
A letter was conveyed to him to the effect that the Army Council at its meeting of June 9, 2016, approved his compulsory retirement from the Nigerian Army, with effect from June 9, 2016, pursuant to the provisions of Paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 (Revised), which provisions are to the effect that his purported compulsory retirement was on disciplinary grounds, i.e., serious offence(s).
Gen. Ijioma, claimed that there was no justifiable reason for the his early compulsory retirement as he has not attained the mandatory retirement age for Major Generals in the Army, which is 56 years, as he was only 53 years by 12th June, 2016, and have only served for 32 years, 11 months and 5 days, as against the mandatory 35 years service age for retirement as provided for by Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the Military.
Maj. Gen. Ijioma is therefore seeking, among others, the Court’s interpretation of the law as to whether:
“Whether he as a Major General in the Nigerian Army, ought to be tried by a General Court Martial for any alleged offence and cannot be tried summarily, which is a trial reserved for officers of lower rank in the Military.
“Whether the claimant is entitled to representation by Counsel of his choice or to defend himself before any decision for or against his interest could be reached and whether failure to allow the claimant right to defend himself amounts to a denial of fair hearing.
“Whether the conduct of the defendants is illegal null and void as the Claimant was never tried in any court of competent jurisdiction and no sentencing or verdict was pronounced against him, and as the Army Council was never handed the records of proceedings for review or confirmation of any verdict passed on him.
“Whether the claimant can legally and validly be disengaged from service under the provisions of of paragraphs 09.02c(4) the Harmonized Terms and Conditions of Service for Officers 2012(Revised) when;
No proceeding was held to try him and a verdict given, no record of proceedings is compiled and transmitted, with the verdict to Army Council, for ratification.
The claimant claimed further that he was never given any charge in the prescribed Form AB 252, which is the means of reporting an offence against service personnel.
He is therefore seeking a declaration of the Court that the purported compulsory retirement of the Claimant from the services of the Nigerian Army, vide letter dated 9th June, 2016, titled, “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)” pursuant to the provisions of paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, did not follow due process and is consequently illegal, invalid, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.
A declaration that the Claimant was never validly and legally retired from the services of the Nigerian Army on the 9th of June, 2016, vide letter dated 9th June, 2016, issued by the Army Council pursuant to its meeting of the same date, or at any other time.
A declaration that the Claimant is still a serving member of the Nigerian Army, and is to be accorded all rights and privileges that he is entitled to based on his rank and position, as provided for in the Harmonized Terms and Conditions of Service, for Officers of the Armed Forces (HTACOS) Officers (2012) Revised.
A declaration that the present action of the Claimant in seeking justice before the court, shall not constitute any ground to witch-hunt or victimize the Claimant upon his reinstatement to the services of the Nigerian Army.
A declaration that the Claimant is entitled to public apology and compensation for the damage done to his person, his office, the lowering of his integrity, and reputation, and the psychological torture and mental agony caused him and his family consequent upon the compulsory retirement of the Claimant upon grounds that are completely unfounded, baseless, frivolous and untrue.
And an order setting aside the letter of compulsory retirement dated 9th June, 2016, titled, “Compulsory Retirement NA Officer Major General Ijioma Nwokoro Ijioma (N/8304)”, made pursuant to the provisions of Paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, issued by the Army Council, purportedly retiring the Claimant from the services of the Nigerian Army with effect from 9th June, 2016.
The Court had in a ruling declared that as at the time the Claimant was retired by the Nigerian Army, he was no longer in active service to be called an officer in the true sense of the word.
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