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REPRESENTATION O. Achinibu, for the claimant. Dozie Uwasomba, for the defendants. RULING 1. On 7th October 2016, the claimant filed a complaint against the defendants praying for the following reliefs: (a) A declaration that the claimant voluntarily retired from the Nigerian Army on the 31st of May, 2015. (b) A declaration that the claimant is entitled to his retirement benefits from the defendants. (c) An order mandating the 1st, 2nd, 3rd and 4th defendants to compute and pay the claimant his entitlement due him on account of voluntary retirement. (d) A declaration that the claimant is entitled to a completed three (3) bedroom Semi Detached House at the Nigerian Army Housing Scheme Kurudu, Abuja. (e) An order directing the 5th & 6th defendants to allocate to the claimant a completed three (3) bedroom Semi Detached House at the Nigerian Army Housing Scheme, Kurudu, Abuja. (f) The sum of Five Hundred Million Naira as general and exemplary damages. (g) Five Million Naira being the cost of this action. 2. The defendants entered formal appearance and then filed a preliminary objection (supported by an affidavit (with an accompanying exhibit) and a written address as well as a further affidavit with an accompanying exhibit attached) pursuit to section 19(e) of the National Industrial Court (NIC) Act 2006, Order 11, Rule 1, NIC Rules; sections 43(a), 178 of the Armed Forces Act Cap. A20 LFN 2004; and under the inherent jurisdiction of the Honourable Court. By the objection, the defendants are praying for an order striking out this suit for lack of jurisdiction/non-compliance with condition precedent. The grounds upon which the objection is based are: (1) The subject natter of this suit borders on the claimant’s military service with the Nigerian Army. (2) The claimant is a military personnel and consequently a person subject to service law governed by the Nigerian Armed Forces Act, Cap. A20 LFN 2004. (3) The claimant’s retirement notice from the Nigerian Army was suspended by a letter to the claimant dated 1st June 2015 in accordance with section 43(a) of the Armed Forces Act Cap. A20 LFN 2004, hence he was not issued with mandatory Certificate of Retirement which forms the basis of retirement in the Nigerian Armed Forces. (4) Section 178 of the Armed Forces Act aforesaid provides ample channel of administrative remedies for any alleged wrong done to any officer in the service of the Nigerian Armed Forces which requires as part of service discipline, to be exhausted before an officer can seek redress or embark in any other action including seeking redress in court. (5) The claimant as an officer of the Nigerian Army has not complied with the relevant provisions of the Armed Forces Act before proceeding to institute this action. 3. In reaction, the claimant filed a counter-affidavit (with accompanying exhibits) and a written address as well as a further affidavit in support of the counter-affidavit (with accompanying exhibits). The defendants did not file any reply on points of law. 4. By the reckoning of the defendants, the case of the claimant is that as a commissioned officer, he voluntarily retired from the Nigerian Army on 31st May 2015, but has not been issued with mandatory Retirement Certificate or paid his entitlements including a three (3) bedroom semi-detached house at Kurudu, Abuja. However, to the defendants, the claimant is still a serving officer with the Nigerian Army and is a person exposed to service discipline. The defendants then framed one issue for the determination of the Court, to wit: whether in view of the provisions of sections 2 and 178 of the Armed Forces Act Cap. A20 LFN 2004, this Court has the requisite jurisdiction to hear and determine this suit as presently constituted. Referring to paragraph 7 of the affidavit in support of the preliminary objection which states that the claimant’s retirement notice was suspended, and section 43(a) of the Armed Forces Act, the defendants submitted that it is obvious that the claimant presently is full member of the Armed Forces of Nigeria and that to extent is liable to service discipline as provided in section 178 of the Armed Forces Act, which enjoined an officer who feels he has been wronged to exhaust the administrative remedies available to him under section 178 before embarking on any other action. That the claimant’s complaint before this Court is pre-mature and vexatious, to having complied with the relevant provisions of section 178; as such, the condition precedent has not been met, citing “Madujolu v. Nkemdilim [1962] All WLR 581â€, Atolagbe v. Awani [1997] 9 NWLR (Pt. 522) 536, NNPC v. Fawehinmi [1998] 7 NWLR (Pt. 559) 598 and Shomolu Local Government Council v. Agbede [1996] 4 NWLR (Pt. 441) 174. The defendants further relied on Col. Ositadinma Uche Nwankwo (RTD) v. Nigerian Army & 7 ors unreported Suit No. NICN/ABJ/317/2016, the ruling of which delivered on 11th July 2017 and then urged the Court to decline jurisdiction and strike out the case with substantial cost. 5. On his part and in reaction, the claimant submitted one issue for the determination of the Court, to wit: whether the NIC has jurisdiction over the cause of action of this suit. The claimant referred the Court to section 254C(1)(a) of the 1999 Constitution, which provides for the jurisdiction of this Court, and then submitted that the Constitution has granted this Court jurisdiction over anything relating to employment to the exclusion of every other Court or body. Citing paragraphs 14 and 15 of the statement of facts, the claimant submitted that his cause of action is labour related and that this Court has exclusive jurisdiction to entertain same. 6. The claimant then went on to address the argument of the defendants, which is that since the retirement of the claimant was suspended on 1st June 2015 (a day after the claimant had retired) he is still subject to the Armed Forces Act and that it was wrong for this suit to be commenced before this Court without exhausting administrative procedure. Citing Udegbunam v. FCDA [1996] 5 NWLR (Pt. 449) 474 at 485, the claimant submitted that the notification of retirement dated 21st November 2014 is clear has to the effective date of retirement, which is 31st May 2015. That the later letter headed “Suspension of Retirement Officer†seems to have been aimed or mis-aimed at suspending his retirement after he had retired from the Armed Forces, something that is a misnomer since what has already happened (the retirement) cannot be suspended vide the letter of 1st June 2015. That it is a misapprehension of the law for the defendants to argue that the claimant is still in service and therefore subject to seeking and addressing administrative remedies when clearly the retirement has well commenced; and that it is noteworthy that the said letter was never received by the claimant. That assuming that the claimant is even still in service, that this suit will not still be subject to the Armed Forces Act as same is subject to the provision of the Constitution which vests in the NIC the jurisdiction to hear this species of suits, citing Utti v. Onoyivwe [1991] 1 NWLR (Pt. 166) 166. That since the Constitution has vested in this Court the jurisdiction to hear this suit, sections 43(a) and 178 of the Armed Forces Act are in applicable as they are contrary to the Constitution and so null and void. 7. On the defendants’ reliance on section 43(a) of the Armed Forces Act, the claimant submitted that the section is headed “postponement of discharge or transfer pending proceedings for offences etc†and then goes on to provide that “a person subject to service laws under this Act shall not be discharged or transferred to the Reserve at a time when he has become liable as a person subject to service laws under this Act to be preceded against for an offence against any of the provisions of service lawâ€. To the claimant, a considered review of the Armed Forces of Nigeria Harmonised Terms and Conditions of Services for Officers 2012 (HTACOS) does not make provision for the discharge of “officersâ€. That chapter 9 of the said HTACOS provides for the resignation and retirement of officers. However, it is section 2.18 of the Armed Forces of Nigeria Harmonised Terms and Condition of Services for Soldiers, Ratings and Airmen 2012 that clearly provides for “transfer to the Reserve and discharge from the Colorsâ€. To the claimant, section 43(a) is accordingly applicable to Soldiers, Ratings and Airmen, not officers. In any event, that the section deals with transfer to “Reserveâ€; and section 2 defines “Reserve†to mean “an Armed Forces Reserve (in this Act referred to as “the Reserveâ€) which shall consist of such number of officers, warrant officers, non-commissioned officers, soldiers, ratings and aircraft men who are transferred to it on completion of their period of service in the Armed Forces and in such other services as the President may prescribeâ€. That the claimant was not seeking or was not going to be transferred to the Reserve since he applied for his retirement and that was just it. Furthermore, that section 43(a) can only activated when the person subject to it “has become liable as a person subject to service law under this Act to be proceeded against for an offence against any of the provisions of service law†(the emphasis is the claimant’s). That the notification of suspension states that the suspension is “in order to conclude ongoing investigation†and not because he has become liable. Finally on this issue, the claimant referred to page 258 of the Manual of Military Law Note to Twelfth Edition, which provides that section 43(a) applies to soldiers, not officers and that “a soldier cannot be retained after the date on which he is due for discharge or transfer to the reserve in order that he may be dealt with summarilyâ€. 8. On the applicability of section 178 of the Armed Forces Act, which provides that “If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Forces Council†(the emphasis is the claimant’s). That section 128(1) and (2) defines superior officer as “the commanding officer; and any officer of the rank of brigadier or above or officer of corresponding rank or those directed to so act under whose command the person is for the time beingâ€. To the claimant, the cause of action in this suit is not and does not relate to being wronged by superior officer or authority; as such the resolution mechanism under section 178 of the Armed Forces Act will not be applicable. The claimant concluded by submitting that because a person joins the Armed Forces does not preclude him from seeking to enforce his rights under the Constitution and/or enforcing his rights against the Nigerian Army, which is a creation of the Constitution. The claimant accordingly urged the Court to assume jurisdiction over this case as enjoined by section 254C(1) of the 1999 Constitution. 9. As I indicated earlier, the defendants did not file any reply on points of law. COURT’S DECISION 10. After due consideration of the processes filed in this suit and the submissions of counsel, what I can deduce as the issue brought up by the parties before the Court is whether the claimant can be said to be still in service as to be bound by the need to exhaust administrative remedies; as well as the related issue as to whether or not the claimant is still in service, he is required to exhaust administrative remedies before he can file this case. Before addressing the merit of the defendants’ preliminary objection, I must state that the reference by the claimant to the Armed Forces of Nigeria Harmonised Terms and Conditions of Services for Officers 2012 (HTACOS) and the Armed Forces of Nigeria Harmonised Terms and Condition of Services for Soldiers, Ratings and Airmen 2012 in interpreting section 43(a) of the Armed Forces Act is uncalled for as these two documents were not frontloaded or exhibited before the Court. 11. What are the facts of this case as presented by the claimant in his pleadings (statement of fact)? In paragraph 8 of the statement of fact, the claimant averred that by a notification of retirement dated 2nd November 2014, the 1st defendant notified him that he will be due for retirement on 31st May 2015. He was then offered to apply for voluntary retirement to the office of the 2nd defendant not later than 31st December 2014 so that the 1st defendant may not consider him for compulsory retirement. He was then directed to proceed on terminal leave by 28th February 2015. (This averment is same with that in paragraph 3 of the claimant’s counter-affidavit in opposition to the preliminary objection.) Now the pleadings in paragraph 8 did not state that the last sentence of paragraph 2 of the letter of notification of retirement of 21st November 2014 stated thus: “Please note that your disengagement from Service is subject to the approval of the Army Councilâ€. Paragraph 9 of the statement of fact then indicated that the claimant by a letter dated 19th December 2014 accepted the offer and applied for voluntary retirement due to failure of Promotional Board 3/2014 examination as he was earlier directed. (This averment is same with that in paragraph 4 of the claimant’s counter-affidavit.) By paragraph 10, the 2nd defendant by a letter dated 29th December 2014 accepted the claimant’s application for voluntary retirement and then directed it to the Army Headquarters Department of Military Secretary Departments for further necessary action. (This averment is same with that in paragraph 5 of the counter-affidavit.) Now the said letter of 29th December 2014 simply states thus: “I am directed to respectfully forward copy of Reference A on subject in respect of the above named officer for your necessary action, pleaseâ€. There is nothing on the face of the letter of 29th December 2014 showing that the 2nd defendant accepted the claimant’s application for voluntary retirement as the claimant pleaded. In paragraph 13, the claimant averred that he proceeded on terminal leave on 28th February 2015 and the Army Council Meeting/Career Review Board in its meeting of 1st Quarter of 2015 approved the final disengagement of the claimant from his service of the 1st defendant with effect from 31st May 2015. (This averment is same with that in paragraph 8 of the counter-affidavit.) There is no document before the Court to show that this approval was communicated to the claimant. If anything, the claimant indicated in paragraph 13 that the defendants are thereby given notice to produce the minutes of the meeting; and in paragraph 14, the claimant averred that irrespective of this final disengagement, the 1st and 2nd defendants failed to issue him with certificate of retirement; nor (by paragraph 15) did the 1st to 3rd defendants pay him any of his entitlements. 12. The defendants in their affidavit in support of the preliminary objection exhibited a letter of 1st June 2015 wherein the claimant was informed that the Chief of Army Staff (COAS) approved the suspension of the claimant’s retirement; as such his disengagement from Service is suspended until investigation involving the claimant, Chisco Transport Limited and the Nigerian Army is concluded. This action was premised on section 43(a) of the Armed Forces Act. 13. To prove that the claimant is still in service, the defendants in their further affidavit of 15th September 2017 brought in a 6th January 2017 document to prove that the defendants hold the claimant as still in service and has been on AWOL (away without leave) since 11th August 2015. I must right away discountenance this exhibit. The claimant filed this suit on 7th October 2016 and the 6th January 2017 document was generated after the filing of this suit. The defendants know of the existence of this suit and yet generated the said document. The Evidence Act 2011 in section 83(3) provides that “nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establishâ€. The defendants are aware of this provision and yet generated the 6th January 2017 document during the pendency of this suit. The 6th January 2017 document accordingly offends section 83(3) of the Evidence Act 2011 and so is hereby discountenanced. 14. The case of the defendant is that the claimant ought to have exhausted the administrative remedies enjoined by section 178 of the Armed Forces Act before approaching this Court, relying of a ruling delivered by Haastrup J of this Court in Col. Ositadinma Uche Nwankwo (RTD) v. Nigerian Army & 7 ors unreported Suit No. NICN/ABJ/317/2016, the ruling of which delivered on 11th July 2017. The claimant on his part argues that he is no longer in service as to be bound by section 178, his voluntary retirement having been accepted. I variously indicated earlier that other than the pleadings to that effect, there is no document indicating that the voluntary retirement of the claimant was accepted. This being the case, there is nothing before the Court to show that the claimant is not covered by section 43(a) of the Armed Forces Act LFN 2014. Section 43 of this Act dealing with postponement of discharge or transfer pending proceedings for offenses, etc provides thus: Notwithstanding anything to the contrary in this Act - (a) a person subject to service law under this Act shall not be discharged or transferred to the Reserve at a time when he has become liable as a person subject to service law under this Act to be proceeded against for an offence against any of the provisions of service law; (b) any person subject to service law under this Act who is serving a sentence of imprisonment or detention awarded by a court-martial under service law or by his commanding officer, shall not be entitled to be discharged or transferred to the Reserve during the currency of the sentence. I already held that it was uncalled for, for the claimant to seek to interpret section 43(a) by reference to the Armed Forces of Nigeria Harmonised Terms and Conditions of Services for Officers 2012 (HTACOS) and the Armed Forces of Nigeria Harmonised Terms and Condition of Services for Soldiers, Ratings and Airmen 2012 without frontloading these documents. To this extent, I must discountenance the claimant’s arguments in that regard; and I so hold. 15. The same is true of the claimant’s reference to page 258 of the Manual of Military Law Note to Twelfth Edition, something not shown to the Court. The claimant’s reliance on this manual and section 2 of the Armed Forces Act to show that section 43(a) does not apply to him loses sight of the fact that section 2 dealing with the establishment of the Armed Forces Reserve provides thus: There shall be established and maintained by the Armed Forces an Armed Forces Reserve (in this Act referred to as "the Reserve") which shall consist of such number of officers, warrant officers, non-commissioned officers, soldiers, ratings and aircraftmen who are transferred to it on completion of their period of service in the Armed Forces and in such other services as the President may prescribe. Contrary to the argument of the claimant that section 43(a) applies to soldiers, not officers, section 2 is quite clear, in using the words “There shall be established and maintained by the Armed Forces an Armed Forces Reserve (in this Act referred to as "the Reserve") which shall consist of such number of officers…â€, expressly provides that officers are covered thereby; as such section 43(a) applies to officers as much as it applies to soldiers. I so hold. 16. The claimant arguing on the applicability of section 178 of the Armed Forces Act submitted that the cause of action in this suit is not and does not relate to being wronged by superior officer or authority; as such the resolution mechanism under section 178 of the Armed Forces Act will not be applicable. Here I must state that the claimant got it wrong. The very facts of the defendants indicating that they reject his voluntary retirement, and their refusal to pay him his entitlements as well as allocate to him a three bedroom house, are all wrongs by an authority. And these are the wrongs that brought the claimant to this Court. The argument of the claimant in this regard accordingly goes to no issue. My colleague, Haastrup J in Col. Ositadinma Uche Nwankwo (RTD) held that fulfilling the requirements of section 178 is mandatory and brooks (or admits of) no exception; as such any failure will render the suit incompetent. Earlier Court of Appeal decisions are clear on this point. For instance, to Akomolafe-Wilson, JCA in Major General Ovo Adhekegba v. The Honourable Minister of Defence & ors [2013] LPELR-20154(CA), “The wordings of Section 178, with particular reference to subsections (1) and (2) are quite clear and unambiguous. An aggrieved officer must first complain to his superior officer and if still unsatisfied, he then complains to the “Forces Councilâ€. In fact, Wing Commander Yusuf Garba Mshelia v. Nigerian Air Force & anor [2014] LPELR-23732(CA) went the extra mile to hold that the duty enjoined under section 178 is one that is not only imposed on the officer but also one imposed on the Forces Council itself. Thus in the words of the Court of Appeal: The refusal of the Forces Council to respond to the letter for redress by the appellant is condemned. The law imposed a duty on it, to consider the complaint, investigate it and grant the necessary redress if any. Its failure to act is a dereliction of that duty. The Armed Forces as a body, is supposed to be exemplary, in discipline, the world over. To violate the law and retire a member of that body in consequence is not an exhibition of discipline or exemplary conduct. To refuse to act in accordance with section 178 of the Armed Forces Act 2004, and to continue to keep the appellant in suspense, is an abuse of office, calculated at denying the appellant the right to seek redress in a court of law… 17. Given these judicial authorities, I am compelled to agree with the defendants that this suit is premature, the claimant having failed to comply with the mandatory provisions of section 178 of the Armed Forces Act. I accordingly hold that this suit is incompetent and so is stuck out. 18. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD