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The Claimant commenced this action vide Originating Summons filed on 15th July, 2016 against the defendants with the determination of the following questions: Whether having regard to the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, particularly paragraph 09.02c(4) thereof, viz-a-viz the provisions of the Armed Forces Act Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be legally compulsorily retired by the Respondent vide letter dated 9th June, 2016, titled “COMPULSORY RETIREMENT NA OFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, (the Applicant herein). Whether having regard to the provisions of the Armed Forces Act, Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be said to have committed any offence or breached any of its provisions thereof, to warrant his compulsory retirement from the services of the Nigerian Army, by the Respondents vide letter dated 9th June, 2016, titled, “COMPULSORY RETIREMENT NA OFICER 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. Whether having regard to the provisions of the Armed Forces Act, Cap. A20, particularly Part XII, dealing with offences and the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, particularly paragraph 09.02c (4) thereof, dealing with retirement, and other extant statutory provisions regulating the Applicant’s appointment, the purported compulsory retirement of the Applicant vide letter dated 9th June, 2016, followed due process, and same can be said to be justified in the circumstances. Whether having regard to the extant provisions of the Armed Forces Act, Cap. A20, particularly Part XII thereof, dealing with punishment, and Part XIV thereof, dealing with trial procedure for officers in the Cadre of the Applicant and other extant statutory provisions regulating the Applicant’s in purportedly retiring the Applicant compulsorily vide letter dated 9th June 2016, pursuant to the provision of paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised. Whether having regard to the provisions of the Armed Forces Act, Cap. A20, the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised, and other extant statutory provisions regulating the service of the Applicant, and the circumstances of this case taken into consideration, the Applicant was ever given any notice, query, arrested, arraigned, charged, and or went through any form of trial before a Court Martial or a regular court, and punished for any offence to have warranted in his being compulsorily retired by the Army Council vide letter dated 9th June, 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. Whether having regard to the alleged disciplinary grounds i.e. serious offence(s) upon the which the Applicant was purportedly retired compulsorily, he was accorded any fair hearing pursuant to the provisions of Sec. 36 (1) (4) of the Constitution of the Federal Republic of Nigeria, 1999, as altered to have justified the compulsory retirement of the Applicant from the services of the Nigerian Army vide a letter dated 9th June, 2016, pursuant to the provisions Paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) 2012 Revised. Whether in the absence of the trial of the claimant before any court of competent jurisdiction, Court Martial properly so called, the Army Council was justified to have constituted itself into the Complainant, the accuser, the Prosecutor and the judge, such as to have compulsorily retired the Applicant on alleged disciplinary grounds, i.e. serious offence(s) and without according the Applicant any form of hearing at all in all its sitting. Whether the claimant is entitled to the reliefs sought upon the declaration of this Honorable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case. Upon the determination of the above questions by the Honorable Court, Applicant seeks the following reliefs: A DECLARATION 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 OFICER 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 Officer of the Armed Forces (HTACOS) Officers (2012) Revised. A DECLARATION that the present action of the claimant in seeking justice before this Honorable Court, shall not constitute any ground to witch-hunt or victimize the claimant upon his reinstatement to the services of the Nigeria Army. A DECLARATION that the association of the claimant’s purported compulsory retirement with the on-going arms deal probe and/or involvement in political partisanship, when the claimant was never involved, indicted, invited, questioned, detained or interrogated in any way whatsoever, by either the Presidential Probe Panel on the Arms Deal or the Election Probe Panel, or be involved in any of the two scandals, is illegal, unlawful, wrongful and constitutes a gross violation of the Applicant’s constitutional rights. A DECLARATION that the claimant is entitled to a 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 undergone by him and his family consequent upon the compulsory retirement of the claimant upon grounds that are completely unfounded, baseless, frivolous and untrue. AN ORDER setting aside the letter of compulsory retirement dated 9th June, 2016, titled “COMPULSORY RETIREMENT NA OFICER 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. AN ORDER directing the immediate reinstatement of the claimant to his rank and payment of all entitlements and perquisites of office due to him pursuant to the order setting aside the letter of compulsory retirement dated 9th June, 2016. AN ORDER restraining the Respondents, whether by themselves, their agents, servants and/or privies and/or all officers, servants and functionaries of the Federal Republic of Nigeria or any other public officer, whatsoever or otherwise howsoever, from giving or continuing to give effect to the letter dated 9th June, 2016, purported to have compulsorily retired the claimant from service of the Nigerian Army. AN ORDER restraining the Respondents, whether by themselves, their agents, servants and/or privies and/or all officers, servants and functionaries of the Federal Republic of Nigeria or any other public officer, whatsoever or otherwise howsoever, from obstructing, disturbing, interfering, stopping or preventing the Applicant in any manner whatsoever, from performing the functions of his office as a serving Major General of the Nigerian Army in the last position and place of assignment, before the letter of compulsory retirement dated 9th June, 2016. AN ORDER restraining the Nigerian Army, or any other government or Security Agency from interfering or acting by proxy, or otherwise, to intimidate, harass, arrest and/or detain the Applicant, or taking any untoward action on any fact connected with or related to the facts of this case, upon which the Applicant seeks for justice before this Honorable Court. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of #1 billion (#1,000,000,000.00) 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 undergone by the Applicant and his family, by the actions of the Respondents. ALTERNATIVELY, IN THE EVENT THAT THE APPLICANT CAN NO LONGER BE EMPLOYED IN THE SERVICE OF THE NIGERIAN ARMY DUE TO THE INABILITY TO CONCLUDE THIS ACTION BEFORE HIS DATE OF OFFICIAL DISENGAGEMENT. AN ORDER compelling the Respondents to tender a public apology in Three (3) leading National Daily Newspaper for the humiliation, embarrassment, and pubic odium, and obloquy undergone by the Applicant by the Respondents’ unlawful, illegal and wrongful compulsory retirement vide letter dated 9th June, 2016. AN ORDER compelling the Respondents jointly and severally to pay to the Applicant the sum of #5 Billion (#5,000,000,000.00) 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 undergone bythe Applicant and his family, by the action of the Respondents. WRITTEN ADDRESS IN SUPPORT OR ORIGINATING SUMMONS ISSUES Whether, having regard to the provisions of the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, particularly Paragraph 09.02c (4) thereof, viz-a-viz the provisions of the Armed Forces Act Cap. A20, particularly Part XII, dealing with offences thereof, the Applicant can be legally compulsorily retired by the Respondent vide letter dated 9th June, 2016, titled , “COMPULSORY RETIREMENT NA OFFICER MAJOR GENERAL IJIOMA NWOKORO IJIOMA (N/8304)”, (the Applicant herein). Whether having regard to the provisions of the Armed Forces Act, A20, particularly Part XII, dealing with offences thereof, the Applicant can be said to have committed any offence or breached any of its provisions thereof, to warrant his compulsory retirement from the services of the Nigerian Army, by the Respondents 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 Armed Forces (HTACOS) Officers (2012) Revised. Whether having regard to the provisions of the Armed Forces Act, A20, particularly Part XII, dealing with offences and the provisions of the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, particularly Paragraph 09.02c (4) thereof, dealing with retirement, and other extant statutory provisions regulating the Applicant’s appointment, the purported compulsory retirement of the Applicant vide letter dated 9th June, 2016, followed due process, and same can be said to be justified in the circumstances. Whether having regard to the extant provisions of the Armed Forces Act, A20, particularly Part XII thereof, dealing with punishment, and Part XIV thereof, dealing with trial procedure for officers in the cadre of the Applicant and other extant statutory provisions regulating the Applicant’s appointment, the Respondents can be said to have followed due process in purportedly retiring the Applicant compulsorily vide letter dated 9th June, 2016, pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised. Whether having regard to the extant provisions of the Armed Forces Act, A20, the Harmonized Terms and Conditions of Service, for Officer of the Armed Forces (HTACOS) Officers (2012) Revised, and other extant statutory provisions regulating the service of the Applicant, and the circumstances of this case taken into consideration, the Applicant was ever given any notice, query, arrested, arraigned, charged and or went through any form of trial before a Court Martial or a regular court, and punished for any offence to have warranted in his being compulsorily retired by the Army Council vide letter dated 9th June, 2016,pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised. Whether having regard to the alleged disciplinary grounds i.e. serious offence(s) upon which the Applicant was purportedly retired compulsorily, he was accorded any fair hearing pursuant to the provisions of Sec. 36(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, to have justified the compulsory retirement of the Applicant from the services of the Nigerian Army vide a letter dated 9th June, 2016, pursuant to the provisions of Paragraph 09.02c (4) of the Armed Forces (HTACOS) Officers (2012) Revised. Whether in the absence of the trial of the claimant before any court of competent jurisdiction, Court Martial properly so called, the Army Council was justified to have constituted itself into the complainant, the accuser, the prosecutor and the judge, such as to have compulsorily retired the Applicant on alleged disciplinary grounds, i.e. serious offence(s) and without according the Applicant any form of hearing at all in its sitting. Whether the claimant is entitled to the reliefs sought upon the declaration of this Honorable Court that the purported compulsory retirement of the claimant is unlawful in the circumstances of this case. ARGUMENT Learned Counsel for the claimant Mike Ozekhome SAN cited the case of NAWA v. ATTORNEY GENERAL CROSS RIVER STATE (2008) ALL FWLR (PT. 401) 807 @ 831, PARA. 3 B-D, on the effect of compulsory retirement of a civil servant without recourse to the rules guiding his employment, counsel. Leaned SAN submitted that considering the fact that the claimant’s compulsory retirement is hinged on alleged criminal conduct, the burden is on the Army Council (Respondent) to satisfy the court that it has duly complied with all relevant provisions regarding such compulsory retirement. P.H.M.B. v. EJITAGHA (2000) 11 WRN 1 @ 6; (2000) 11 NWLR 9PT. 677) 154 @ 160, per Uwaifo, JSC. He submitted that as a Major General in the Nigerian Army, the claimant cannot be tried summarily, but by a Court martial, which allows him representation to defend himself by counsel of his choice, thus ensuring fair hearing. Furthermore, that where the proceedings take place, the Court Martial returns a verdict and gives a sentence subject to confirmation by the Armed Forces Council. SEC. 129 – 142 of the AFA; SECTIONS 140, 141, 152 (b) of the AFA. It is counsel’s contention that the Army Council in reaching a decision to compulsorily retire the claimant, on alleged disciplinary grounds, i.e., serious offence(s), without the setting up of any Court Martial to try him and make its findings known to the Army Council, constitutes a gross violation of the claimant’s right to fair hearing. ZAKARI v. NIGERIAN ARMY & ANOR. (2015) LPELR-24721 (SC) 24 -35, PARAS. B-F, per Odili, JSC; OKORO v. NIGEIRAN ARMY COUNCIL (2000) 3 NWLR (PT. 647) 77, per Adamu, JCA @Pp. 25 – 32, PARAS. E-C. Relying on the authority of SAMUEL v. NIGERIAN ARMY (2006) LPELR-11751 (CA) @ Pp. 36-37, PARAS. C-E, per Awala, JCA; NIGERIAN ARMY v. DODO (2012) LPELR-8288 (SC) 29, PARA. F; MAJOR BELLO F. MAGAJI v. THE NIGERIAN ARMY (2008) LPELR-1814 (SC), per Ogbuagu, JSC; ADEBAYO v. NGERIAN ARMY & ANOR. (2012) LPELR-7902 (CA), Danjuma, JCA @ P. 25, PARAS. C-F; AGBITI v. NIGERIAN NAVY (2011) 4 NWLR (PT. 175), per Adekeye, JSC for the nature and structure of a General Court Martial. The Learned Senior Advocate submitted that the Court Martial has a duty to make its decisions and state how it came by them and that every finding of a court or tribunal must be based on reasons and the reasons for reaching a particular finding or conclusion definitely must be based on facts and failure to do this is fatal. IDAKWO v. NIGERIA ARMY (2004) 2 NWLR (PT. 857) 249; SEC. 36 (7) of the CFRN, 1999; ASAKE v. THE NIGEIRAN ARMY COUNCIL & ANOR. (2006) LPELR-5427 (CA), per Augie, JCA @ Pp. 25-26, PARAS. F-A. He argued further that the action of the Army Council breaches all known principles of fair hearing which is fundamental to all court procedure including Tribunals and those exercising quasi-judicial functions, the Court Martial and Army Council. SEC. 36 (4) of the CFRN, 1999 as altered; OKIKE V. LPDC & ORS. (2005) LPELR-7466 (CA) Pp. / 31 – 32, PARAS. G-A, per Ba’ba, JCA; PAM & ANOR. v. MOHAMMED & ANOR. (2008) LPELR-2895 (CA) Pp. 26-27, PARAS. F-A, per Oguntade, JSC. He also submitted that the courts have held that the principle of fair hearing is breached where parties are not afforded a fair hearing or any hearing at all, as in the present case. EJEKA v. STATE (2003) LPELR-1061 (SC) 13, PARAS. A-D, per Tobi, JSC. Learned SAN further submitted that in an action for wrongful retirement, once the issue of the wrongful retirement is decided, the next issue that calls for determination is the issue of the measure of damages recoverable where the retirement is found to be wrongful. SAIBU v. KWARA STATE POLYTECHNIC, ILORIN (2008) LPELR-4524 (CA), per Ogunwunmiju, JCA @ P. 37, PARAS. B-E. Citing the case of OBINWA v. C.O.P. (2007) 11 NWLR (PT. 911 @ 426, PARA. F, per Owoade, JCA. On award of exemplary damages. Claimant Counsel argued and urged the Court that the letter of 9th June, 2016 led to the claimant being retired prematurely with all the attendant stigma and societal odium attached to such compulsory retirement as the ground was said to be on disciplinary grounds over the alleged commission of serious offence(s), whereas there was absolutely none. ALLIED BANK OF NIGERIA LTD. v. AKUBUEZE (1997) LPELR-429 (SC) 48 & 49, PARAS. F-B; ODOGU v. A.G. FED. & ORS. (1996) LPELR-2228 (SC) 12, PARAS. A-C, per Ogundare, JSC. Relying the authority of ODIBI & ANOR. v. MUEME (1999) LPELR-2216(SC), per Ogwuegbu, JSC @ P. 24, PARA. G; ODIBA v. AGEGE (1998) LPELR-2215 (SC), per Iguh, JSC @ p. 25, PARAS. B-D. for the award of aggravated damages as claimed by the claimant and EFCC v. INUWA & ANOR. (2014) LPELR-23597 (CA), per Akeju, JCA @ P. 18, PARAS. A-B. on the award of general damages. The 2nd and 3rd Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 20th September, 2016 and dated 19th September, 2016, objecting to the jurisdictional competence of this Honorable court to hear and entertain this suit. GROUNDS FOR THE OBJECTION That this suit No: NICN/ABJ/262/2016 is premature, pre-emptive and an abuse of court process. That the claimant did not comply with the condition precedent in Sec. 9.02(e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) before commencing this action i.e. awaiting the outcome of his appeal to Mr. President, Commander in Chief, to have his case reconsidered having exercised the right of appeal. That there is no cause of action against the defendants. RELEIF SOUGHT An Order of this Honorable Court striking out/dismissing this suit for want of jurisdiction. The 2nd and 3rd Defendants filed also a WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMIANRY OBJECTION with the ISSUE Whether or not the claimant can maintain this Suit No: NICN/ABJ/262/2016 viz-a-viz his pending appeal to Mr. President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria for reconsideration of compulsory retirement. Learned Counsel to the 2nd and 3rd Defendants Paul Imafidor Esq. submitted that Sec. 9.02 (e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) gives an officer right of remedy to appeal to MR. President for reconsideration of his case and where an officer as in this case decided and or resorted to the statutory remedy it must be exhausted and thereby deprived of any other form of remedy than that given by the statute. ADEWOLE v. ADETIMO (1994) 3 NWLR (PT. 335) 740 @ 770-771, PARAS. H-A, per Oguntade, JSC. 2nd and 3rd Defendants Counsel contended that the claimant must wait for the outcome of his appeal to the President for reconsideration and that the claimant cannot maintain this suit simultaneously pending his appeal to the President over the propriety of his retirement for reconsideration of compulsory retirement from the service of the Nigerian Army. That assuming he had not exercised the right of appeal to the President as statutory remedy provided in the Harmonized Terms and Conditions of Service for Officers, there may have been no issue with this suit, but that as it stands now, the two cannot co-exist. EQUAMWEBSE v. AMAGHIZEMWEN (1993) 9 NWLR (PT. 315) 29 @ 59, PARAS. F-H, per Karibi-Whyte, JSC. He submitted that the law is trite that where a precondition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid. ORAKUL RESOURCES LIMITED v. NIGERIAN COMMUNICATIONS COMMISSION (2007) ALL FWLR (PT. 390) 1482 @ 1506, PARAS. D-H, per Peter-Odili, JCA. The 1st and 4th Defendants filed a NOTICE OF PRELIMIANRY OBJECTION on 5th October, 2016 and dated 30th September, 2016, that the Court lacks jurisdiction to entertain this suit and same should be dismissed. The Ground of Objections are: That the suit is incompetent having failed to comply with the provisions of paragraph 09.02 of the Harmonized Terms and Conditions of Service for Officers (HTACOS). That this Honorable Court lacks the jurisdiction to entertain this suit as condition precedent to the institution of the suit and admissibility of public documents attached to therewith were deliberately fouled. The 1st and 4th defendant also filed a Written Address in Support of Preliminary Objection with the issue: Whether this Honorable Court is clothed with the powers to entertain or adjudicate this suit when the condition precedent to the institution of same suit and admissibility of public documents attached therewith have been fouled by the claimant. The 1stand 4th defendant Counsel M. D. Owolabi Esq. argued that the court is empowered to dismiss, strike out or set aside a suit for lack of jurisdiction. OLORUNTOBA v. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 94 R. 3 SC. He contended that paragraphs 9 & 11 of the Defendants’ Counter Affidavit alluded to the fact that in the event that the claimant elects to appeal his compulsory retirement under Paragraph 09.02c (4) of HTACOS, he is under a mandatory duty to make such appeal within 30 days of his compulsory retirement to the President (C-IN-C) through the CDS and that there is no evidence of compliance with this condition by the claimant before rushing to Court. Furthermore, that Exhibits INI 1 & 2 attached to the claimant’s affidavit are not certified true copies of the original. F.C.D.A. v. KORIPAMO-AGARY (2010) 14 NWLR (PT. 1213) 372 R. 10; A.G ANAMNBRA STATE v. OKEKE (2002) 12 NWLR (PT. 782) 575. Learned Counsel to the 1st and 4th defendant further argued that the operative word in Paragraph 09.02c of HTACOS is “shall” which in a plethora of judicial authorities has been held to be mandatory and compulsory when conferring responsibility or duty and that there is no evidence that the claimant has complied with same before rushing to the Court to institute this action. KAMBA v. BAWA (2005) 4 NWLR (PT. 914) 51; CAPT. EKEAGWU v. NIGERIAN ARMY & ANOR. (2010) 16 NWLR (PT. 1220) 422-433 R. 2; AGIP (NIG.) LTD. v. AGIP PETROLI INT’L (2010) 5 NWLR (PT. 1187) 364 R. 15. On the issue of admissibility of Exhibits INI 1 & 2 attached to the claimant’s affidavit Counsel to the 1st and 4th defendants contended that the said documents are photocopies by which the claimant claimed notified him of his compulsory retirement and harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS), counsel referred the Court to the following authorities: ZENITH BANK v. JOHNSON A. AKINNIYI (2015) LPELR-247; DELTAL STATE HOUSE OF ASSEMBLY v. PDP & 3 ORS. (2014) LPELR-228; MADUKA v. UBAH (2015) 11 NWLR (PT. 1470) 209 R. 11 & 12; EGHOBAMIEN v. FEDERAL MORTGAGE BANK NIGERIA (2002) 17 NWLR (PT. 797) 488; OKAFOR v. OKPALA (1995) 1 NWLR (PT. 374) 749. And to appreciate the import, purport and underlined philosophy behind this certification of public documents, counsel relied on the case of ARAKA v. EGBUE (2003) 17 NWLR (PT. 848) 1; SECTIONS 88, 89, 90, 102, 104, 105 and 106 of the EVIDENCE ACT, 2011; KUBOR & ANOR. v. DICKSON & 0RS. (2012) LPELR-9817. The CLAIMANT’S filed REPLY ADDRESS TO THE 1ST and 4TH DEFENDANTS’ COUNTER AFFIDAIT FILED ON 5TH October, 2016 (dated 12th October, 2016). Learned Counsel Mike Ozekhome SAN. submitted that the 1st and 4th defendants’ Counter Affidavit in every essence and ramification failed to address any of the issues set down for determination in the claimant’s Originating Summons. Instead what the defendants did in their counter affidavit was to procure a person who never was in a position to know of the facts contained in the counter affidavit and worse still, proceeded to relate information which smacks of hearsay, without fulfilling the provisions of Sec. 115 (3 & (4) of the Evidence Act, 2011. Furthermore, that the paragraphs particularly, paragraphs 8a-t of the Counter affidavit deposed to by Warrant Officer Peter Ahmadu, are liable to be struck out. He urged the Court to hold that Warrant Officer Peter Ahmadu is not a proper person to depose to the Counter Affidavit in a case of this nature. ESENE v. THE SPEAKER, EDO STATE HOUSE OF ASSEMBLY & ORS. (2012) LPELR-19775 (CA), per Yakubu, JCA (Pp. 44-46, PARAS. D-A). It is Claimant Counsel’s contention that it is clear from the defendants’ submission that they fell into the error of giving to a Board of Inquiry a status not envisaged by statutes and relevant authorities, thus elevating it to such level as being conclusive proof of the offence alleged. SEC. 172 (4) of the ARMD FORCES ACT. On the binding nature of a Board of Inquiry report, counsel cited the authorities of PATRICK ZIIDEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544 (SC), per Ogbuagu, JSC; ACTION CONGRESS & ANOR. v. INDEPENDENT NATIONAL ELECTORAL COMMISION (2007) LPELR-66 (SC), per Ogbuagu, JSC.Counsel pointed out that a Board of Inquiry does not amount to a trial, that the report of a BOI is not admissible before a Court Martial, that a BOI is not a Court of Law that could indict or render judgment. ARMED FROCES ACT, CAP. 20, LAWS OF THE FEDERATION OF NIGERIA, 2004, SEC. 172, P. A20 – 38. The CLAIMANT’S filed a REPLY TO THE DEFENDNATS’ NOTICE OF PRELIMINARY OBJECTION dated 11th October, 2016 and filed on 12th October, 2016. Wherein the claimants formulated one sole ISSUE Whether flowing from the facts and circumstances of this case, viz-a-viz the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces (HTACOS) Officers 2012 Revised, particularly paragraph 09.02(e) thereof, there could be said to be a condition precedent placed upon the claimant and whether the provision of any statute(s) has been breached in the course of instituting this action. Learned Senior Advocate, Counsel to the Claimant submitted that where the jurisdiction of a court is challenged, the only processes the court considers is the claims of the claimant as contained in his originating processes. ONI v. CADBURY NIGERIA LIMITED (2016) 5 WRN 1 @ 23, LINES 25 – 30, per Rhodes-Vivour, JSC. He contended that it does not lie with the defendants to lift a particular section from a statute out of context, and proceed to interpret it to suit their own purpose. USMAN & ANOR. v. MACCIDO & ORS. (2009) LPELR-8517 (CA) P. 30, PARAS. C-F. It is counsel’s submission that the HTACOS never imposed any condition whatsoever, upon the claimant to appeal to any authority and exhaust all such avenues before seeking redress in a court of law. UGWU v. ARARUME (2007) LPELR-3329 (SC), per Chukwuma-Eneh, JSC. He argued that the comma (“) in paragraph 09.02e of the HTACOS plays an important role in separating the officers approved to be (compulsorily) retired from those to be called upon to retire, resign or relinquish their commission, per Tobi, JSC in ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT. 1120) 1, 134. Furthermore, that an elementary rule of construction that phrases and sentences are to be constructed according to the rules of grammar. P. St. Langan, Maxwell on Interpretation of Statutes (12th Ed.), (Bombay: N.M. Tripathi Private Ltd, 1976) 28; DR. GABRIEL OMOWAIYE v. AGF EKITI STATE & ANOR. (2010) LPELR-4779 (CA), per Nweze, JCA, Pp. 42-44. Counsel submitted that the case of EKEAGWU v. NIGERIAN ARMY & ANOR. (2010) 16 NWLR (PT. 1220) 435-436, cited by the defendants is against the position being canvassed by the defendants as the issue of whether the Appellant complied with the provision to appeal to the President within 30 days was never canvassed in that case. Furthermore, that the decisions per Onnoghen was cited out of context in that it relates to the fact that there was provision for monetary payment as remedy for his compulsory retirement pursuant to the provisions of paragraph 09.02d of the HTACOS.. TANKO v. THE STATE (2009) LPELR-3136 (SC) (P. 46, PARAS. E-F), per Ogbuagu, JSC. He submitted that whatever is provided in any statute cannot be made subject to the rights of a claimant to approach the court. KAYILI v. YIBUK (2016) 6 WRN 52 @ 79 LINES 5-15, per Kekere-Ekun, JSC @ P. 103 lines 5-15. It is counsel’s submission that the contents of a document may be proved either by primary evidence or secondary evidence. SECTIONS 85, 86 (1) and 88 of the EVIDENCE ACT, 2011; BANKOLE v. BANKOLE (2012) LPELR-7988 (CA), per Mshella, JCA (Pp. 8-9, PARAS. F-D). He further submitted that it is beyond doubt that the primary evidence of a public document can be tendered for the inspection of the court. MV DELOS v. OCEAN STEAMSHIP (NIG.) LTD (2004) 17 NWRL (PT. 901) 103, PARAS. E-F, per Chukwuma-Eneh, JCA. On the best evidence for the presentation of documents, counsel relied on the case of UTB NIG. LTD. AJAGBULE (2005) LPELR-7563 (CA), per Abba, JCA (Pp. 35-36, PARAS. F-A). Learned Claimant Counsel submitted that it is clear the HTACOS is a subsidiary legislation having the force of law amongst members of the Armed Forces in Nigeria and that Sec. 122 of the Evidence Act, 2011 enjoins the court to take judicial notice of such enactment. ADO IBRAHIM & CO. LTD. v. BENDEL CEMENT CO. LTD. (2007) LPELR-188 (SC) 21, PARAS. F-G, per Muhammad, JSC. He submitted that there is authority to the effect that any matter the court is to take judicial notice of, need not be proved. CHIEDI & ANOR. v. AG. FEDERATION (2006) LPELR-11806 (CA), per Muhammad, JCA (P. 24, PARAS. A-D). The CLAIMANT/RESPONDENT’S REPLY TO THE DEFENDANTS/APPLICANT’S NOTICE OF PRELIMIANRY OBJECTION filed on 12th October, 2016and dated 11th December, 2016. With the ISSUE Whether flowing from the facts and circumstances of this case, viz-a-viz the provisions of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces, 2012 Revised, particularly Paragraph 09.02 (e) thereof, there could be said to be a pending appeal before the President Commander-in-Chief, such as to prevent the claimant/respondent from maintaining this suit. Learned Counsel to the Claimant submitted that where the jurisdiction of a court is challenged, the only processes the court considers is the claims of the Applicant as contained in his originating process. ONI v. CADBURY NIGERIA LIMITED (2016) 5 WRN 1 @ 23, LINES 25-30, per Rhodes-Vivour, JSC. And Claimant Counsel contended that apart from being an afterthought, it is a total lack of understanding on the part of the Applicants of their own statute which regulates issues pertaining to the retirement of an officer in the cadre of the claimant/respondent and that it does not lie with the Applicants to lift a particular section form a statute out of context and proceed to interpret it to suit their own purpose. USMAN & ANOR. v. MACCIDO & ORS. (2009) LPELR-8517 (CA) P. 30, PARAS. C-F. It is counsel’s argument that the mistake of placing the Respondent in the category of those who can exercise the option of appealing to the President, stems from the fact the Applicants erroneously interpreted the provisions of Paragraph 09.02e and did not take into consideration the cardinal principle guiding the interpretation of statutes, that it is to be read as a whole and not in isolation, as done by the Applicants. Furthermore, that the HTACOS never imposed any condition whatsoever upon the Respondent to appeal to any authority and exhaust all such avenues before seeking redress in a court of law. UGWU v. ARARUME (2007) LPELR-3329 (SC), per Chukwuma-Eneh, JSC. He argued that the comma ( , ) in paragraph 09.02e of the HTACOS plays an important role in separating the officers approved to be (compulsorily) retired from those to be called upon to retire, resign or relinquish their commission, per Tobi, JSC in ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT. 1120) 1, 134. Furthermore, that an elementary rule of construction that phrases and sentences are to be constructed according to the rules of grammar. P. St. Langan, Maxwell on Interpretation of Statutes (12th Ed.), (Bombay: N.M. Tripathi Private Ltd, 1976) 28; DR. GABRIEL OMOWAIYE v. AGF EKITI STATE & ANOR. (2010) LPELR-4779 (CA), per Nweze, JCA, Pp. 42-44. He submitted that whatever is provided in any statute cannot be made subject to the rights of a claimant to approach the court. KAYILI v. YIBUK (2016) 6 WRN 52 @ 79 LINES 5-15, per Kekere-Ekun, JSC @ P. 103 lines 5-15. On the 24th November 2016 parties adopted their written addresses and adumbrated their positions accordingly. During adumbration the Court requested the parties to address the court on the propriety of commencing this matter by originating summon considering the reliefs sought. Parties duly incorporated this aspect in their addresses and the matter was adjourned for ruling Court’s Decision Having carefully summarized the position of all sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Preliminary objections filed but any or both the defendants i.e. that of the 2nd and 3rd defendant and /or 1st and 4th defendant. The issue of the defendants are thus from the 2nd and 3rd defendant Whether or not the claimant can maintain this Suit No: NICN/ABJ/262/2016 viz-a-viz his pending appeal to Mr. President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria for reconsideration of compulsory retirement. And thus for 1st and 4th defendant. Whether this Honorable Court is clothed with the powers to entertain or adjudicate this suit when the condition precedent to the institution of same suit and admissibility of public documents attached therewith have been fouled by the claimant. These issues raise question as to 1. The propriety of Sec. 9.02 (e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) and whether it amounts to a condition precedent and 2. the question of abuse of court process, 3. Whether there is a cause of action against the defendant and 4. The question of classification and admissibility of documents In making their submission the 2nd and 3rd defendant submitted that Sec. 9.02 (e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) gives an officer right of remedy to appeal to MR. President for reconsideration of his case and where an officer as in this case decided and or resorted to the statutory remedy it must be exhausted and thereby deprived of any other form of remedy than that given by the statute. ADEWOLE v. ADETIMO (Supra). and went on to argue that assuming he had not exercised the right of appeal to the President as statutory remedy provided in the Harmonized Terms and Conditions of Service for Officers, there may have been no issue with this suit, but that as it stands now, the two cannot co-exist. The 1st and 4th defendant also argue that in the event that the claimant elects to appeal his compulsory retirement under Paragraph 09.02c (4) of HTACOS, he is under a mandatory duty to make such appeal within 30 days of his compulsory retirement to the President (C-IN-C) through the CDS and that there is no evidence of compliance with this condition by the claimant before rushing to Court. Sec. 9.02 (e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) provides that : “Notwithstanding the provision of paragraph 09.01 and 09.02 an officer shall if approved by the Army council, Navy Board, or Air Force Council concern, be retired, be called to retire, resign or relinquish his commission. An officer called to retire, resign or relinquish his commission, shall if he so desires appeal to M. President C in C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer had collected the three month salary paid to him / her in lieu of notice.” The claimant had on their own part argued that the HTACOS never imposed any condition whatsoever, upon the claimant to appeal to any authority and exhaust all such avenues before seeking redress in a court of law. UGWU v. ARARUME (Supra). Contending that HTACOS separated the officers approved to be (compulsorily) retired from those to be called upon to retire, resign or relinquish their commission, ABUBAKAR v. YAR’ADUA (Supra). To the claimant Counsel the case of EKEAGWU v. NIGERIAN ARMY & ANOR. (Supra) 16 NWLR (PT. 1220) 435-436, does not support their position as the provision to appeal to the President within 30 days was never canvassed in that case. Contending further that whatever is provided in any statute cannot be made subject to the rights of a claimant to approach the court. KAYILI v. YIBUK (Supra). To the Claimant it is clear the HTACOS is a subsidiary legislation having the force of law amongst members of the Armed Forces in Nigeria and that Sec. 122 of the Evidence Act, 2011 enjoining the court to take judicial notice of such enactment. ADO IBRAHIM & CO. LTD. v. BENDEL CEMENT CO. LTD. (Supra) arguing that any matter the court is to take judicial notice of, need not be proved. CHIEDI & ANOR. v. AG. FEDERATION (Supra) The Claimant also contended that the defendants misunderstood the statute in that with regard to the retirement of an officer in the cadre of the claimant/respondent i.e. separating the officers approved to be (compulsorily) retired from those to be called upon to retire, resign or relinquish their commission. To the claimant it does not lie with the Defendants/Applicants to lift a particular section, form a statute out of context and proceed to interpret it to suit their own purpose. Furthermore, the claimant argued the HTACOS never imposed any condition whatsoever upon the Respondent to appeal to any authority and exhaust all such avenues before seeking redress in a court of law. UGWU v. ARARUME (Supra I agree with the Claimant that where the jurisdiction of a court is challenged, the only processes the court considers is the claims of the Applicant as contained in his originating process. ONI v. CADBURY NIGERIA LIMITED (Supra). And the claimant in paragraph 24 of his affidavit in support of his Originating process averred that he had petitioned the President Commander in Chief, about the grave injustice meted out to him. However looking at the express wordings of Sec. 9.02 (e) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) (Reproduced once more for ease of reference); “Notwithstanding the provision of paragraph 09.01 and 09.02 an officer shall if approved by the Army council, Navy Board, or Air Force Council concern, be retired, be called to retire, resign or relinquish his commission. An officer called to retire, resign or relinquish his commission, shall if he so desires appeal to M. President C in C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer had collected the three month salary paid to him / her in lieu of notice.” The question arises as to whether the words ... . An officer called to retire, resign or relinquish his commission, shall if he so desires appeal to M. President C in C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer had collected the three month salary paid to him / her in lieu of notice.” amount to a condition precedent or create a provision “pre determinae justicae” A.G KWARA STATE & ANOR Vs. ADEYEMO & ORS (2016) LPELR-41147(SC) the Supreme Court properly elucidated the expression "condition precedent" the case of J.S. Atolagbe & Ors v. Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (Pt. 522) 537 at 565 per Uwais CJN thus:- "Condition is a provision which makes the existence of a right dependent on the happening of an event, the right is then additional as opposed to an absolute right. A true condition where the event on which the existence of the right depends is in the future uncertain. A 'condition precedent' is one that delays the vesting of a right until the happening of an event." VIRGIN NIGERIA AIRWAYS LTD v. ROIJIEN(2013) LPELR-22044(CA) "The rule is that where the law places a condition precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated condition. Failure of a party to comply with the condition in the circumstance is fatal and incurable. - Ozobia v. Anah (1999) 5 NWLR (Pt. 601) 13 Ratio 2." Per IYIZOBA, J.C.A. (P. 32, paras. F-G) Orakul Resources Ltd. v. N.C.C. (2007) 16 NWLR (Pt. 1060) 270 at 313 - 314 Paras. G - A (CA) "Conditions precedent for commencement of actions in court are imposed either by the common law or legislation. Such conditions include giving of notice as in the case of bringing action against government or government agency. Though, they are not of essence in a cause of action in a suit, they are essential because they are superimposed on the law. The claimant had argued that the Harmonized Terms and Condition of Service for Officers of the Armed Forces (HTACOS) is a subsidiary legislation but failed to show the court how the document in question came to be subsidiary legislation In NJOJU & ORS Vs. IHENATU & ORS (2008) LPELR-3871(CA) the Court of Appeal held that "A subsidiary legislation or enactment is one that was subsequently made or enacted under and pursuant to the power conferred by the principal legislation or enactment. It derives its force and efficacy from the principal legislation to which it is therefore secondary and complimentary. See DIN V. A.G.F. (1988) 4 NWLR (1987) 147, ISHOLA V. AJIBOYE (1994) 6 NWLR (35552) 506 & OLARENWAJU V. OYEYEMI (2001) 2 NWLR (697) 229."Per GARBA, J.C.A (P. 20-21, paras. G-B). This court has in the case of SUIT NO. NICN/LA/74/2014 MAHMUD BAYO ALABIDUN Vs. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR delivered on 30th January 2014 held that the conditions of service to have the force of law are required to be made pursuant to any section of the enabling Act, which in that case was the FAAN Act, the case went on to state that UJAM V. IMT [2007] 2 NWLR (PT. 1089) 470 CA enjoins that the regulations or conditions of service must commence with the provision of the enabling statute if it is to be read as a product of delegated or donated authority. The claimant in this instant suit has not shown the court how or where the Harmonized Terms and condition were made pursuant to the Armed Force Act to enable the court treat the Conditions as delegated or donated authority afortori subsidiary legislation More importantly the wordings of Section 9.02 (e) particularly “shall if he so desires appeal to M. President C in C through the CDS within 30 days to have his case reconsidered. However, the appeal would become a nullity if the officer had collected the three month salary paid to him / her in lieu of notice.” Do not create a condition the words ‘if he so desires’ ordinarily raises an option i.e. leaving the officer in question with the /a discretion to appeal or on the contrary refrain from so appealing. The word “if” creates a hypothetical situation negating the mandatory essence of the use of the word “shall” in this provisio. I find. Bearing in mind that a condition precedents are essential because they are superimposed on the law and a precedent for commencement of actions in court imposed by the common law or legislation, and having noted that the Harmonized Terms and Conditions of Service under review are neither law nor a product of common law and considering Courts have always made a distinction between conditions contained in statutes and those contained in staff Terms and Conditions i.e. Handbooks See the case of SUIT NO: NICN/UY/04/2014 IME ASUQUO UDOH Vs. UNITED BANK FOR AFRICA PLC (UBA) delivered on the 19th September 2016 and also with due regard to the pronouncement of Omoleye JCA DR. A. O. OLALEKAN VS. UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL 2012 LPELR 20099 C.A., that: By the provisions of para 1(b) of the University of Maiduguri Teaching Hospital Revised Handbook on residency training Programme 1997 (Hereinafter referred to as the Handbook) That is exhibit H at pages 258 to 278 particular at p.265 “a resident doctor shall not go to court for the protection of his constitutional rights arising from disciplinary measures, disputes, disagreements or any such matters pertaining thereto until he/she has exhausted all internal procedure for redress including Petition to the University of Maiduguri Teaching Hospital Board of Management”. It was the contention in favour of the Respondent that the Appellant ought to but failed to avail himself of the internal redress mechanism, which is a condition precedent to the commencement of the Appellants suit before the trial court. According to the Respondent, the Appellants failure to comply with the provisions of paragraph 1(b) of the said Handbook rendered the suit incompetent and that the trial court ought to dismiss the Appellants suit for that reason. Although the learned Judge did not consider it necessary to resolve this ground of objection, it should be noted that, the law is trite that such a provision requiring an aggrieved party in the shoes of Appellant to avail himself or herself of the steps contained in paragraph 1(b) of the Handbook before going to court to ventilate his grievance, is a mere procedural requirement for invoking the jurisdiction of court. To put it in other words, the said procedure is quite different from the authority or competence of the court to decide a matter which on the face of is within the jurisdiction of the court. The purpose of a pre action requirement as contained in paragraph 1(b) of the Handbook is to enable a Complainant and the Respondent decide what to do by way of negotiation in the event of a Complaint. It is not designed to abrogate the Right of the Complainant to approach the Court or to defeat his cause of action. See the cases of (1) BARCLAYS BANK LTD VS CENTRAL BANK OF NIGERIA [1976] 6 SC P175, (2) MOBIL PRODUCING NIGERIA UNLTD VS. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY [2002] 18 NWLR (PT. 798) P1 AND (3) ETI-OSA LGA VS JEGEDE [2007]10 NWLR (PT. 1043) P537 PER OMOLEYE JCA (PP.20-21PARA C-F). I find that the provision of 09.02(e) fails to rise to the level of a condition precedent for the purpose of preventing the claimant from approaching a court of law until and unless the said provision is complied with. This provision I find and hold cannot wish away the inalienable and constitutional right of the claimant to proceed to court in respect of his compulsory retirement.. As regards the objection that this suit is or constitutes an abuse of process, the law describes an abuse of court process as ‘where a party improperly uses the judicial process, intentionally in order to irritate and annoy his opponent, it can be said that such amounts to an abuse of the process of the Court. FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455, AFRICAN REINSURANCE CORP. v. JDP CONSTRUCTION NIG. LTD. (2003) 2-3 S.C. 47; (2003) 13 NWLR (PT. 838) 609 @ 635 And in IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470 This court held that ‘the fundamental criteria for determining that a case is an abuse of process is that there must exist a multiplicity of suits and such multiplicity of suits is intended to annoy or harass the opponent by so doing or temper with the judicial process. OGOJEOFOR V. OGOJEOFOR (2006) 3 NWLR (PT. 966) 205 @ 220; KOTOYE v. SARAKI (1992) 9 NWLR (PT. 264) 156 @ 188-189. The Court went on to state that ‘the defendants or any party alleging an abuse of court process must place before the court concrete evidence such as the processes of the other pending case or any such material particulars to enable the court make a finding that would enable it reach a decision on whether or not the facts and circumstances of the case indeed amount to an abuse of court process’. The grouse of the defendants in making this objection was the appeal by the claimant to the President C in C, this I have found cannot be considered a suit neither in the circumstances does it tamper with the judicial process. I find and hold. The defendants also raised the question of there being no cause of action against the defendants, now this court in COMRADE ISHOLA ADESHINA SURAJUDEEN v. MR. ANTHONY NTED & ANOR. Unreported Suit No. NICN/LA/114/2013 a ruling delivered on July 10, 2014. “A cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitled the plaintiff to succeed that the defendant has the right to traverse”. The claimant from the reliefs sought is seeking declaratory redress from the compulsorily retirement and pronouncement on the actions of the defendants. In averment 6, 7, 8, and 9 of the claimant affidavit raises challenge to the defendants and their action in the Army Council, I find that the claimant at this stage has raised a challenge to the defendant and has established a prima facie cause of action for which the defendants would be required to respond. This axis of the objection also fails. That leaves the question of the frontloading of uncertified documents, I find this objection somewhat premature at this stage as although all frontloaded documents are deemed admitted and the flexibility of this court by Section 12(1) and Section 37 TDA allows for the consideration of frontloaded photocopied documents by consent of parties See MR. KURT SEVERINSON v. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED (2012) 27 NWLR (PT 74) 37 NIC but in the case of a trial the parties could be required to present the originals for proper consideration and this court can compel same, however a cursory glance at the processes before the court filed reveal that the newspaper extracts were all duly certified, the letter of termination by law this document does not require certification being the document served on the claimant See the case of GOVERNOR OF EKITI STATE Vs. OJO [2006] 17 NWLR (Pt. 1007) 95 at 129 para B-D Abdullahi JCA and with regard to the Terms and Conditions, at trial the claimant would be required to present the court with the complete / full document See the case of MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, and as the claimant rightly stated the court would call for the exhibits accordingly. This aspect of the defendants’ objection also fails. That being said means therefore that this suit/matter is not pre-emptive, neither is it premature nor incompetent All in all I find the objects of the defendants lack merit and are hereby dismissed. The court had asked parties to address the court as to the propriety of the claimant commencing this suit by way of originating summons. Whereas Learned Counsel for the defendant during oral adumbration had informed the court that the matter was highly contentious and full of conflicts arguing that the claimant case was that he was not indicted by any panel before his compulsory retirement while the defendants maintain the contrary arguing that their exhibits show the claimant tried to sell army property and argue further that the Army Council is empowered to discipline any staff. The claimant argued that the proceedings were not likely to be contentious as all parties agree that the claimant was compulsory retired and they, the claimant maintain that this was done without recourse to due process. All sides raised submissions that certain of their averments were not challenged as this itself would score any points in this court where a party is required to succeed on the merit of his own case and not by the weakness in the case of his opponent. See the case of IRONBAR V. CROSS RIVER BASIN AND RURAL DEVELOPMENT AUTHORITY [2004] 2 NWLR (PT. 857) 411 AT 434 That said, the claimant by this suit is complaining that his compulsory retirement by the defendants “did not follow due process, and is consequently illegal, invalid, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever” and so prays for a declaration that he “was never validly or legally retired” and that he is “still a serving member of the Nigerian Army and is to be accorded all rights and privileges..... of his rank and position” as well as other injunctive retraining reliefs in addition to “a public apology” and “an order setting aside his termination”, “immediate reinstatement” and “N1 billion Naira exemplary, aggravated punitive and general damages”. By EKAEGWU V. NIGERIAN ARMY [2006] LPELR-7641(CA) Dismissal or compulsory retirement of an employee by the employer translates into bringing the employment to an end. And in OMIDIORA V. FEDERAL CIVIL SERVICE COMMISSION [2007] 14 NWLR (PT. 1053) 17, ‘disengagement’ connotes laying off, withdrawal, retrenchment or other like exercise as opposed to dismissal. In complaining about his compulsory retirement, the claimant is effectively complaining about his employment ending. Now the Courts have cautioned against the use of originating summons where facts are likely to be disputed and so require proof. In NEPA V. UGBAJA [1998] 5 NWLR (Pt. 548) 106, for instance, it was held that a case that has to do with unlawful dismissal of an employee should not normally be commenced by an originating summons which only requires the matter to be proved by affidavit evidence. That such an action should be commenced by an ordinary writ of summons so that pleading could be ordered and exchanged and concrete evidence given to establish the claim or defence. Furthermore, the Court of Appeal in S.C.S. COMPANY VS. COUNCIL OF ILE IFE [2011]14 NWLR (PT.1269)193 AT 204-205 PARAS. H-B, Per Iyizoba J.C.A., held- “It is indeed not advisable to employ the originating summon for hostile proceedings. The fact that the appellant’s contract was terminated by the respondent immediately underscores the point that proceedings will be hostile. The respondent is bound to try and justify his action in terminating the contract. Whether it would succeed or not is another matter but the point is that they would try. They would fight the case all the way through”. Also in HONORABLE MICHAEL DAPIANLONG & 5 ORS. VS. CHIEF JOSHUA CHIBI DARIYE[2007] 4SCNJ 289; HON OGBONNA ASOGWA V PDP & 2ORS [2012] 12 SC (PT. III) 112, wherein the apex court held that the originating summons is a means of commencing action adopted where facts are not in dispute. I am very much aware of the cautionary pronouncement of His Lordship Bada JCA of the Court of Appeal in ODUKWE V. ACHEBE (2008) 1 NWLR (PT. 1067) 40 AT P. 57. "Although the procedure of commencing suits by originating summons ensures a quick disposal of suits, it may also unfairly inhibit the parties from fully ventilating what is in controversy in a contentious matter. Therefore, care must be taken to ensure that the procedure is used only when appropriate." The case of NJIDEKA EZEIGWE & 2 ORS VS. CHIEF BENSON CHUKS [2010] 2-3 SC (Pt. 1) 2, the Supreme Court of Nigeria held that the procedure of originating summon is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who without need for pleadings merely want a directive of court on point of law involved The situation between parties in this case cannot be described as friendly or even ‘ad idem’ in substance, a cursory regard of the combative language of the processes in this case all lead the court to hold that there are still issues requiring venting ‘a la mode’ ODUKWE VS, ACHEBE (SUPRA). For that reason and based on the above authorities, I hereby find and hold that an Originating summons is not appropriate means of commencing this suit Consequently, in the light of the contentious issues highlighted above, these issues raised are material to this case and I find and hold that they cannot be properly resolved in the absence of a procedure that allows for the filing and exchange of pleadings so that further evidence can be adduced and be cross examined. See generally, ETIM VS. OBOT [2010] 12 NWLR (PT. 1207) PG 117. The National Industrial Court is a specialized court set up to address not only the legalese and justice of the case between parties but advance the cause of equity and openness. The court is expected to be devoid of unnecessary technicalities, with substantial justice as our goal while at the same time ensuring that the claims of litigants are adequately addressed. In the circumstance; What the proper order to make is? The Supreme Court in OSANBADE VS. OYEWUMI [2007] 18 ALL FWLR (PT. 368) 1004 AT 1015 PARAS. –E, held, “The proper order a trial court should make where it finds that an action had been wrongly commenced by Originating Summons is to order pleadings and not to dismiss such action or pronounce on the merits of the case”. Also see the case of UDO V. R.T.B.C. & S. (2013) 14 NWLR (PT. 1375) 488 @ 493 where it was held that Commencing an action by wrong procedure does not constitute a jurisdictional issue since the lapse, except where specifically stated in the Rules of court, does not defeat the claimant’s cause of action. If the subject matter of the plaintiff’s action is within the jurisdiction of the court, the cause of action would not be abrogated simply because it has been commenced by wrong procedure. The lapse in that regard is only an irregularity that gives the defendant the right to insist that the plaintiff adopts the proper procedure in approaching the court. Even then, the objection must be raised within a reasonable time. Also the Supreme Court in ADEYELU II V. AJAGUNGBADE III [2007] 14 NWLR (PT. 1053) PAGES 3-4 Per Ogbuagu, J.S.C has it to say on the proper order to make where a suit is wrongly commenced by originating summons – “The proper order a trial court should make where it finds that a suit before it was wrongly commenced by way of Originating Summons is to order pleadings and not to dismiss such suit.” See Order 17 rule 2 National Industrial Court of Nigeria Civil Procedure Rule 2017 (NICNCPR) On the strength of the Supreme Court decisions in OSANBADE VS. OYEWUMI (SUPRA), ADEYELU II VS. AJAGUNGBADE III (SUPRA) and by virtue of (NICNCPR 2017) Order 5 rule 1 of the National Industrial Court Rules I hereby order the parties herein to file and serve their pleadings, the claimant shall file and serve his statement of fact and other relevant processes in accordance with the relevant provisions of Order 3 of the Rules of this court. The defendants shall file and serve their statement of defence within two weeks of receiving the statement of fact of the claimant. This is the ruling of this court and it is hereby entered. ……………………………. Hon Justice E. N. Agbakoba Judge.