JUDGMENT. The claimant took up a general form of complaint dated and filed on 6th day of September 2016, claiming against the defendants as follows:- 1. A DECLARATORY ORDER of this Honourable Court that my purported compulsory retirement of the Claimant from the services of the Nigerian Army by the Second Defendant vide its letter dated 9th June, 2016 constitutes/constituted an unfair and or wrongful dismissal and therefore wrongful, unlawful, illegal, unconstitutional, invalid and contrary to the Armed Forces of Nigeria Harmonized Terms and Conditions of Service for Officers 2012. 2. A DECLARATORY ORDER of this Honourable Court that the action of the Seventh, Eighth and Ninth Defendants herein jointly and severally in procuring the punishment of my compulsory retirement without any legal or factual basis in wanton breach of all principles of natural justice as well as relevant constitutional provisions with respect to fair hearing and due process and as shown on the facts of this case is malicious, arbitrary and constitutes abuse of office hiding under color of law and/or office. 3. A DECLARATORY ORDER of this Honourable Court that the actions of the Defendants in my purported compulsory retirement as presented in this case constitutes a most wanton and unconstitutional application of unfair practices to my direct detriment. 4. AN ORDER of the Honourable Court setting aside the purported letter of compulsory retirement dated 9th June, 2016 which was issued to me by or on behalf of the Second Defendant for being unlawful, invalid, unconstitutional, void and of no effect whatsoever. 5. AN ORDER of the Honourable Court directing my immediate reinstatement to my statutory protected employment or service in the Nigerian Army and which re-instatement is to be made effective from 9th June, 2016 with all my rights and entitlements. 6. AN ORDER of the Honourable Court restraining the Defendants, their agents, privies however and howsoever described from harassing or subjecting me to any form of arbitrariness on account of this action and or claim before this Honourable Court of competent jurisdiction in pursuance of the legal right conferred on the Claimant by paragraph 09.07 of the Harmonized Terms and Conditions of Service for Officers 2012 (revised) published by Fifth Defendant for benefit of Claimant and which also binds the First, Second and Third Defendants. 7. COMPENSATORY, AGGRAVATED AND EXEMPLARY DAMAGES in the sum of N1,000,000,000.00 (One Billion Naira) only jointly and severally against the First, Sixth, Seventh, Eighth and Ninth Defendants. 8. OTHER RELIEF(S) in law or equity including but not limited to order for costs of this action on a full indemnity basis and injunctions as the Court is authorized to grant under the provisions of the Constitution, under the provisions of the National Industrial Court Act and under the stipulations of the National Industrial Court Rules as this Honourable Court deems just and proper in the circumstances. THE CASE OF THE CLAIMANT. The claimant testified in proof of his case on 19/4/18, as CW1. He tendered exhibits CW1A – CW1G. The case of the claimant is that he was a Colonel in the Nigeria Army, until 9th day of June 2016, when he was compulsorily retired from the Army. CW1, testified that he was commissioned as a regular officer in September, 1994 and as a commissioned officer he was part of the Nigerian Army Forces subject to the executive decisions of the Nigerian Army Council, the Armed Forces Council and the Nigerian State represented in this suit by the 6th Defendant. The letters of commissioning dated 5/9/94, was tendered and admitted in evidence and marked exhibit CW1B, continued his testimony that since his commission on 5th September, 1994, as member of 41 Regular Course, he has been a very dedicated, disciplined and hardworking officer. He excelled in all his military courses and examinations. He severally had served as an instructor, staff officer and commander in the field, including appointments of higher rank in acting capacity. He also participated commendably in several peacekeeping and international security operations within and outside the country earning the Chief of Army Staff Commendation Award in 2015. That his deployment and performance in the North East in various capacities within a span of 4 years made him and his family constantly under threats of attack by Boko Haram. He had to relocate his family from barrack to his village and recently to Abakpa, Kaduna State. He equally served the Nigerian Army and by extension the nation in different capacities one of which was as Commander 7 Division Gar, Operation Zaman Lafia, during which period he led troops of 251 and 254 TF battalion to outflank and out maneuver the insurgents and eventually claim the 2 towns and stronghold established in the said two towns. His demonstration as an innovative and effective commander can be evident in his performance evaluation reports and favourable remarks from his superior officers and commendation from the Chief of Army Staff and other superior bodies in the Nigerian Army, the United Nations, other foreign bodies and countries. He narrated his service in Liberia and Sudan and got commendation from United Nations in New York. He also narrated how he served at various capacities in the Nigeria Army and how he earned purplet heart award. He also testified that his military records with the Nigerian Army have lauded his commitment, integrity, intelligence, competence and gallantry with attendant military appointments and awards. The letters of commendation and awards were tendered and admitted in evidence as exhibits CW1D – CW1G. CW1, continued his evidence that rather than being appreciative of his laudable records of' achievements, he was shocked to receive the Defendants' letter of 9th June 2016, coded, AHQMS/Gl/300/226 wherein he was purportedly retired compulsorily from the services of the Nigerian Army. The reason(s) for the purported compulsory retirement was on disciplinary grounds i.e. serious offences. CW1, stated that the reason(s) for his purported compulsory retirement is unfounded and a ruse as he has never at any time, since the date of his commission as an officer committed any act that could be viewed as amounting to indiscipline or serious offences that could warrant any disciplinary measures. CW1, stated that in accordance with the laid down procedures and paragraph 09:02(e) of the Harmonised Terms and Conditions of Service for the Nigerian Armed Forces officers 2012 (Revised), written a letter of 22 June 2016, appealing to the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria for redress against his compulsory retirement from the service of the Army. According to CW1, he has never been invited by any tribunal or body on account of any misconduct, indiscretion or any offence however and howsoever described except that on 10th June 2016, he received a phone call from an officer from the Army Headquarters, Department of Military Secretary informing him of his compulsory retirement from the Nigerian Army and requested that he should go to pick up his retirement letter. After receiving the letter, a press release was made by the Nigerian Army spokesman that the retirement affected officers who were either indicted by the Presidential Investigation Panel on the on-going arms purchase with the office of the National Security Adviser or were partisan in the 2015 General Elections. CW1, continued with his testimony that in November 2015, he was invited via a phone text message to a Board of Inquiry in relation to the 2015 General Elections convened by the Nigerian Army in Kaduna. When he appeared, he was asked to write a statement on how the 2015 General Elections were conducted in 7 Division Area and further asked who were Senator Ali Modu Sheriff and Major General JAH Ewansiha. After his response he was asked to return to his post as Deputy Director Procurement in the Office of the Chief of Army Staff. In addition, in January 2016, he was invited to Special Investigation Bureau of the Nigerian Army to answer on an issue relating to N2 million naira being released monthly as Civilian joint Task Force training support to 7 Division Garrison by Army Headquarters Department of Training and Operations. The training of the Civilian Joint Task Force was a clandestine operation away from the prying eyes of the public, especially the media. CW1, stated that he has never been involved in anything that has to do with the ongoing arms purchase deal neither is he partisan as all efforts by the last administration to truncate the election in Borno State was rebuffed because of his patriotic responsibility to the nation. CW1, further stated that he has never been invited by the Presidential Investigation panel on the on-going arms purchase with the office of the National Security Adviser neither has he been charged to court on any matter relating to the Said arms purchase or for any criminal offence whatsoever. CW1, stated that the acts of the Defendants offends the statutory provisions of the Armed Forces Act and the Harmonized Terms and Conditions of Service for officers 2012 (Revised). The Defendants have no valid reason for his purported dismissal based on his capacity or conduct based on the operational requirements of the Nigeria Army. The Defendants have not met even the barest minimum procedure for any disciplinary action. He has never been given a chance to defend himself before he was punished by the purported compulsory retirement. The Defendants have deliberately stultified his appeal to the President as provided under the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised) published by Chief of Defence Staff and made operation effective 10 July, 2012. The disciplinary process for an officer of his cadre in the Nigerian Army was never followed. He was never given or served with or charged on the prescribed Form AB 252, which is the means of reporting an offence against service personnel. He was never tried in any court or tribunal of competent jurisdiction at all. No sentencing or verdict was pronounced against him and the Army Council was never handed the records of any proceedings for review or confirmation of any verdict passed on him. According to CW1, his purported compulsory retirement is a punishment and is tantamount to a dismissal and I was punished and or being punished without any notice, query, trial, arraignment, court-martial, or even warning either oral or written. The Defendants have used their offices and they have exploited his vulnerability and acted to dress him in the dirty garb of a criminal since the news of my purported compulsory retirement was made public, and have been inundated with numerous telephone calls, text messages, emails, letters etc from home and abroad from people who were equally embarrassed by the publications, about his alleged conducts and subsequent compulsory retirement. That as a result of the unlawful acts of the Defendants, he has been greatly traumatized by the news of his compulsory retirement based on allegations of non-existent serious offences he never knew about or took part in. The Defendants jointly and severally owe a duty of good faith that requires them to deal with him fairly both to the manner of meting out punishment and in the manner of managing his appeal for redress, but they have acted to deny him right of appeal to the President in order to exploit his vulnerability. The Defendants have refused and or failed to treat him fairly and the failure to treat him fairly is not justified on the basis of any law or policy. The news of his purported retirement has been published in different dailies in Nigeria and in a Press Release by the Army Spokesman, Col. S. K. Usman, it was falsely and maliciously stated on behalf of the Defendants that his dismissal was done to purge the Nigerian Army of corrupt officers indicted by either the Presidential Arms Panel, or the Election Petition Panel. But I have had no factual involvement at all with either of these two grounds to the knowledge of the Defendants herein. It was stated that the Seventh Defendant, while purporting to be corroborating the statement of the Army Spokesperson, also falsely and maliciously reiterated and was quoted on the pages of newspapers as saying that he was dismissed for corruption. The various acts of the Defendants constitute deliberate and extreme misconduct deserving of full condemnation and punishment as the Defendants have consciously and deliberately disregarded his career path and livelihood as well as his emotional wellbeing in the circumstances as presented in this case. The Defendants' misconduct is not only malicious and oppressive but has demonstrated a highhandedness that offends every sense of decency and fairness. The punishment meted out by the Defendants to him without any grounds or justification constitutes in itself arbitrary conduct that departs to a marked degree from ordinary standards of decent behavior as it is completely unreasonable that a person should be punished when to the actual knowledge of the one meting out the punishment he knew such punishment was uncalled for and in this case despite opportunity to correct the unfair punishment meted out to him the Defendants have failed and refused to remedy it but have instead continued in their own misconduct in the circumstances. Under cross examination, CW1, testified to the effect that he had an eventful career in service as he is one of the most decorated officer in the Nigeria Army. He served for 26 years 3 month 8 days. He was commissioned in 1994 as 2nd Lt. during the regime of General Sani Abacha. That he subscribed to serve Nigeria. In the Harmonized Terms and Conditions of Service, he can serve for 35 years but at 18 years he can retire. That he signed to serve for 18 years. He stated he know the position of Armed Forces Act regarding tenure. After his 18 years I applied for re-engagement. I don’t have that application. The application was approved, the application is classified document I don’t have copy of the approval. I have been approved to serve for 35 years. He did not apply for re-engagement after 22 years. Under re-examination CW1 stated that the extension is with Military Secretary. THE CASE OF THE DEFENDANTS: The defendants called only single witness by name Captain N. Okorie of the Directorate of Legal Services (Army), Army, who testified on behalf of the defendants as DW1. The witness tendered one exhibit under cross examination marked as DW1A. DW1, testified that the claimant was commissioned as a 2/Lt. he served as an officer in the Nigerian Armed Forces from 5th day of September, 1994, for a period of 18 years only, he however served for 26 years 8 months and some days, far in excess of his commission. DW1, continued her testimony to the effect that the Defendants had to retire the Claimant from the Nigerian Armed Forces because he had refused to retire and instead he clung to the service without any lawful reason for him to continue. The Claimant was throughout his tenure fairly, reasonably and justly treated like his other colleagues with regards to his services as an officer of the Nigerian army within the Nigerian Armed Forces, and all the duties assigned to him were those expected of him as an officer in the Nigerian Armed Forces. DW1, stated that the Claimant having overstayed his commission with more than 8 years he cannot complain of compulsory retirement. It is stated that the Defendants has not disclosed any wrongful act or injury done to him as the result of his retirement from a job in which he had overstayed the period he had signed for and which he duly swore to an oath to abide by it. Under cross examination, DW1, testified that she is a lawyer call to the Bar in 2008. She is currently serving with Nigeria Army. She stated that she is aware of Harmonized Terms and Conditions of Service 2012. Exhibit CW1 A 1-3 is from Military Secretary and not from Nigeria Army Headquarters. Exhibit CW1A 1-3, in paragraph 1 is provision under which claimant was retrenched. Page 35 of exhibit DW1A paragraph 09.02 (c) (iV) is what was reproduced in exhibit CW1A 1-3. If one stays in the Army without following necessary steps is a serious offence. Armed forces oaths of allegiance that he will serve for 18 years and if need arises he will apply for extension for not following rules is a serious offence. The procedure is to write him which the Nigeria Army had done. The Armed Forces Act provide for admin and administration and not limited to description is not true that an officer of rank of Colonel cannot be retired without going through disciplinary procedure. THE DEFENDANTS FINAL WRITTEN ADDRESS ISSUES FOR DETERMINATION The defendants submitted three issues for determination, thus: 1. Whether the claimant has established by preponderance of evidence that his employment with the 1st defendant is for 35 years? 2. Whether the defendant has established by preponderance of evidence that the claimant employment with the 1st defendant was for 18 years in the first instance and whether the claimant has overstayed his tenure? 3. Whether the claimant is entitled to the reliefs sought? LEGAL ARGUMENT Counsel argued issues one and three together. Emmanuel Onoja, Esq; counsel for the 1st5th and 7th -9th defendants in arguing issues 1 and 3 together submitted that the claimant’s contract of employment is statutory, governed by the Armed Forces Act cap. A 20 Laws of the Federation of Nigeria, 2004. Thus, it is the said statute that defines the terms of employment of the claimant. According to counsel the claimant's case is to the effect that his employment with the 1st defendant was for 35 years hence the termination of his employment was wrongful. This places the burden of proof on the claimant. It is contended that the burden of proof lies upon the Party who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof. On this submission counsel relied on sections 131 (2) and 132 of the Evidence Act, 2011 and the case of ANYAKA V ANYAKA, (2005) All FWLR (Pt. 799) 1150 @ 1175 para H. Counsel further submitted that the claimant has the burden to plead and prove not only the terms of his employment with the 1st defendant but also how his employment may be determined and why the termination of his employment was wrongful. Counsel further relied on the cases of lmaseun V University of Benin (2011) (Pt. 572) 1791 @ 1809 paras B-D, OFORISHE V NIGERIAN GAS COMPANY LTD (2018) 2 NWLR (PT 1602) 36 @ 61paras D-E. It is the submission of counsel that the claimant did not lead evidence to establish the terms and conditions of his employment, how his employment should be determined and how the terms were breached. The claimant merely led evidence on the positions he held while in service of the 1st defendant, the positive evaluations and commendations by his superiors as well as the awards he received while in service. On this submission counsel referred the court to exhibits CW1D1-2, CW1E and CW1H among others. These pieces of evidence did not in any way prove the terms of the claimant's employment and how his retirement was wrongful. If anything, the claimant evidence tends to appeal to emotion and sentiments. In any event, the court doesn't act on emotion and sentiment. The claimant failed to prove wrongful termination of employment. Counsel urged court to so hold and dismiss this suit. It is also the submission of counsel that the procedure an officer of the Nigerian Army whose term of regular service has expired can remain in service beyond the period of his commission specified in the instrument of his commission and statute is to resort to the procedure under section 30(3) of the Armed Forces Act cap. A 20 Laws of the Federation of Nigeria 2004; to apply for reengagement. The application for reengagement is subject to approval by the competent service authority. In the instant case, the claimant failed, refused or neglected to take the advantage of the opportunity provided by the said statute: to apply for reengagement. The settled position of the law is where a statute spelt out the manner or mode of performing an act, failure to perform that act in the manner or mode prescribed by the statute is fatal to the party in breach. On this contention counsel relied on the cases of OYAMA V AIGBE (2016) All FWLR (Pt. 840) 1274 @1292 paras O-E, Corporate Ideal Insurance Ltd V Ajaokuta Steel Company Ltd (2014) All FWLR (Pt. 731) 1441 @1462. Counsel argued that the claimant cannot eat his cake and have his cake. Having failed to apply for reengagement after serving beyond the period specified by instrument of his commission exhibit CW1B and statute; the Armed Forces Act cap. A 20 Laws of the Federation of Nigeria 2004, the claimant cannot be heard to complain for wrongful termination. Issue 2. Whether the defendant has established by preponderance of evidence that the claimant employment with the 1st defendant was for 18 years in the first instance and whether the claimant has overstayed his tenure? In arguing issue two, counsel submitted that the defendants' case as presented through its sole witness DW1, is that the claimant is an employee for a fixed term, to wit 18 years, and that the claimant has worked for the 1st defendant beyond the said agreed period stipulated in the statute regulating his employment; the Armed Forces Act cap. A 20 Laws of the Federation of Nigeria 2004. The defendant led evidence in support of this assertion. And under cross-examination, the DW 1 testified that an officer who continued in service without applying for reengagement after serving out the term of his commission stipulated by his instrument of commission and statute commits a serious offence. These piece of evidence were neither controverted nor discredited. It is trite that the court is bound to accept and act on uncontroverted evidence. On this submission counsel relied on the case of BURUTOLOU fa: ORS V YEIBAKE fa: ORS (2015) ALL FWLR (PT.771) 1534 @ 1545 paras C-D. It is also submitted that the failure to challenge or contradict evidence of an adversary during trial of a case amounts to admission of the said evidence in law. To buttress this submission counsel relied on the cases of BANK OF THE NORTH LTD V ALlYU (1999) 7 NWLR (Pt.612) 622 @ 632 Paras D-E, Omoregbe V P. Lawani (1980) 2-4 SC 157, Ajibade V Mayowa (1978) 8-9 SC 15. Counsel urged the court to act on the defendants’ evidence and dismiss the claimant's case for lacking in merit. Counsel further submitted that a person, whose appointment is for a fixed term, cannot be heard to complain of wrongful termination of employment after completion of the said period specified by statute and the instrument of his employment. It is the contention of counsel that in exhibit CW1B, the First Schedule, Armed Force Oath dated 5th September, 1994 (tendered by the claimant); as exhibit CW1B, the claimant swore to serve the Federal Republic of Nigeria by Law established as an Officer for 18 years and duty bound to serve for the period of engagement or reengagement: Counsel argued that it is a settled principle of law that parties are bound by the terms of a contract they freely entered. The duty of the court, in the event of a dispute is merely to construe the intention of the parties as contained in their contract. On this contention counsel cited the case of OFORISHE V NIGERIANGASCOMPANYLTO (2018) 2 NWLR (supra), @ 53 para D. Counsel also urged the Court to hold that it lacks the power to import extraneous terms into the claimant contract of employment with the 1st defendant. On the basis of exhibit CW1B, the claimant instrument of appointment, the claimant's employment was for a fixed term, the claimant has served out the agreed term hence his employment was validly determined. It is also argued that documentary evidence is the best evidence. As such, oral evidence is not admissible to contradict, vary or alter the contents of a document. Thus, the oral evidence of the claimant that his employment is to run for 35 years which is at variance with exhibit CW1B goes to no issue. On this reliance was placed on section 128 of the Evidence Act, 2011; and the cases of ANYAKA V ANYAKA (supra), @ 1067, Ogundepo V Olumesan (2012) All FWLR (Pt. 609) 1136 @ 1146 SC. In concluding his submission, counsel urged the court to hold that on the basis of exhibit CW1B, the claimant instrument of appointment, the claimant's employment was for a fixed term, the claimant has served out the agreed term and his employment was validly determined. THE 6TH DEFENDANT’S SUBMISSION: The 6th defendant raised single issue for determination, to wit: ‘‘Whether considering the circumstances of this case and evidence before this Honourable Court, the Claimant is entitled to be re-engaged in the army after serving for 26 years, 8 months, and 30 days without the approval of the respective competent authority, after the expiration of the 18years regular service period as stated in the Armed Forces Act? ARGUMENT: Ibukum Okwooisie, Esq; counsel for the 6th defendant in arguing the sole issue formulated for determination, submitted that section 30(1)(b) of the Armed Forces Act, clearly stipulated 18 years as period for an officer to serve in the military. Counsel contended the use of the word ‘shall’ in the sub-section the total number of years for service should not exceed a total of continuous period of eighteen years of regular service from the date of enlistment counsel argued that the provision is mandatory. It is the argument of counsel that the approval for re-engagement is provided for in subsection (2) and (3) of Section 30 above stating that he cannot continue in service after his regular service period has expired without the approval of the respective competent authority which he failed to obtain. In other words, there is nowhere the Claimant led evidence suggesting that he obtained approval to serve for more than 18 years. It is the submission of counsel that subsection (2) and (3) of section 30 of the Armed Forces Act, implies that if he so desires he can continue to serve the Nigerian Army as long as he has obtained an approval from his respective competent authority after the expiration of the 18 years regular service as provided by the Act, for another 4 years making it a total number of 22 years. It is the contention of counsel that spending more than the statutory time limit without approval amounted to a gross breach of oath as well as an act of indiscipline unbecoming of an officer of the Nigeria Army. It is further argued that subsection (3) specifically state that he can even go beyond the 22years of service if he obtains the approval of his respective competent authority as if his term of regular service was unexpired, however he did not obtain any such approval. The failure to obtain the requisite approval is fatal to the Claimant's case and this amounts to failure to fulfil a necessary condition precedent that would have activated the court's jurisdiction to consider the Claimant's case or claims. The relevant statute has provided the only means by which Claimant could have lawfully extended his stay in the Army, there is no alternative to this. On this contention counsel relied on the case of BUHARI V. INEC (2008) 4 NWLR PT. 1078 PG. 546 @ PP. 644, PARAS. G-H. It is the submission of counsel that the Claimant having failed to obtain the approval for reengagement from the competent authority to proceed with service above 18 years, he is deemed to be estopped from asserting the fact that he was compulsorily retired. On this contention counsel placed reliance on the definition of estoppel in the Black's Law Dictionary (Ninth Edition). To further support this contention counsel cited section 169 of the Evidence Act (2011) states as follows; 'When one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person's representative in interest, to deny the truth of that thing.' It is the submission of counsel that the above section implies that when a person makes a representation intentionally to another person causing the person to belief same, then the person making the representation is estopped by himself or any of his privies from denying it. It is contended that the claimant made a declaration on oath to the Nigerian Army that he was going to serve for a period of 18 years however he served for a continuous period of 26 years, 8 months and 30 days without the approval of the respective competent authority. It is the submission of counsel that assuming without conceding that the Claimant sought for the approval of the respective competent authority, the highest number of years he would have served in the Nigerian army would have been 22 years. Counsel also argued that under the statute of limitation even the court of law has no right to extend the time limit within which a cause of action can be said to have become statute barred. In the same vein, this court cannot extend or elongate the prescribed number of years an officer may serve in the Nigerian Army as long as there is a prescribed number of years which the extant Act has statutorily provided. Counsel supported this submission by the decision in MR. FERDINARD EKPO MBANG V. MR. ELDRED E.U. OFFIONG (2012) LPELR-19723(CA). It is the contention of counsel that it is well established legal principle that once a statute or an Act provides a precise time within which an order or a thing is expected to be carried out, the court of law cannot extend or elongate such period as it has no power to do so. Counsel argued that section 30 of the Nigerian Armed Forces Act, states that the year of regular service is 18 years however there are condition attached if an officer intends to elongate the regular service which in the instant case have not been fulfilled, hence, there is no foundation upon which the court can exercise the power of extension. Counsel submitted that the claimant is seeking for AN ORDER directing the immediate reinstatement to his statutory protected employment which will amount to a violation of the Armed Forces Act as it is unequivocal that the court has no power to do so. It is further submitted that in relation to the claim of 1,000,000,000.00 (ONE Billion Naira) tagged" compensatory, aggravated and exemplary" damages claimed against the 6th Defendant alongside the 1st – 5th and 7th – 9th Defendants in this suit, that the Claimant is not in any way entitled to any damages against the 6th defendant in this suit. This is premised on the fact that the alleged dismissal of the Claimant was not in any way made by the 6th Defendant. There was nowhere during trial where evidence was led alleging any illegality or wrongdoing perpetrated by the 6th Defendant against the Claimant in this suit. Claimant did not establish a reasonable cause of action against the 6th Defendant in any way. It is also argued that damages must be earned against a party before it will be awarded. This is more so that the claim here is exemplary damages. Counsel urged the court to so hold and dismiss the claims of the Claimant against the 6th Defendant. Counsel also argued that the Claimant is not entitled to the reliefs sought against the 6th Defendant. In concluding his argument counsel urged the court to dismiss the reliefs sought by the Claimant having failed to establish any direct claim against the 6th Defendant nor establish his entitlements to the reliefs on the merit. There is no factual or legal basis upon which the reliefs can be granted in view of the provisions of the extant Act which the Claimant failed to comply with. THE CLAIMANTS SUBMISSION ISSUE FOR DETERMINATION The claimant submitted lone issue for determination, to wit: ‘‘Whether the claimant has proved on the preponderance of evidence that is entitled to the reliefs sought’’. ARGUMENT ON ISSUE FORMULATED Olayinka Adedeji, Esq; counsel for the claimant in making oral submission before the court adopted the final written address as his argument on the matter. Counsel submitted that it is the evidence of DW1 that Claimant was compulsorily retired because the Claimant had overstayed his employment. DW1 testified that the parchment letter; Exhibit CW1B was for a fixed period of 18 years and that the Claimant did not apply for re-engagement, The law is trite that in an action for wrongful termination, the Claimant must put before the Court the following: a. The terms and conditions of his contract of employment and b. The manner in which the terms and conditions of the engagement was breached by his employers. It is the submission of counsel that the above were the conditions spelt out by the Supreme Court in OFORISHE V. NIGERIAN GAS COMPANY LIMITED (2018) 2 NWLR (PT 1602) 36 AT 61; PARAS D-E rightfully cited by the Counsel to the Defendants in his Final Written Address. It is the submission of counsel that before this Honourable Court is Exhibit DW1 A, titled Armed Forces of Nigeria Harmonised Terms and Conditions of Service for Officers 2012 and Exhibit CW1 B, and CW1 C, is the letter of commissioning and Armed Forces Oath of the Claimant. Also regulating the employment of the Claimant is the Armed Forces Act Cap A20 of the Laws of the Federal Republic of Nigeria. It is submitted that for a claim of this nature, in line with the decision of the Supreme Court, the Claimant has pleaded before the Court all that is required in assisting the Court in determining the wrongful termination of his employment. It is not in doubt that the employment of the Claimant is one with statutory flavour, this requires no proof thereof. The Defendants in their Final Written Address made a heavy weather of the Claimant exceeding the number of years on his parchment letter as supported by the evidence led by DW1. The law is trite that in an employment with statutory flavour, termination must be in strict adherence to the procedure laid down in the statute. On this submission counsel relied on the case of COMPTROLLER GENERAL OF CUSTOMS V. GUSAU (2017) 18 NWLR (PT 1598) PG 353 @ 387-388, PARAS H-A. According to counsel the question that arises therefrom is whether the termination/compulsory retirement of the Claimant was done in the manner prescribed by the Armed Forces of Nigeria Harmonized Terms and Conditions of Service for Officers 2012 and/or the Armed Forces Act? Chapter 9:01 the Armed Forces of Nigeria Harmonised Terms and Conditions of Service provides for Resignation, Retirement and Resettlement of Officers, particularly 09.02 makes provision for compulsory retirement or resignation, on several grounds including disciplinary ground i.e serious offences, ill-health, etc. It is the submission of counsel that the claimant has substantially complied with condition 9.02(e) of the Harmonized Armed Forces Revised Condition of service 2012, in exhausting the options available to him before commencing this suit. On the compulsory retirement of the Claimant, counsel referred to Exhibit CWIA 1-3, which is the Letter of Retirement, wherein it was stated that the Claimant was compulsorily retired by the provisions of Paragraph 09.02(c) (4) of the Armed Forces of Nigeria Harmonised Terms and Conditions of Service for Officers 2012 (Revised). The above referred provision is based on disciplinary grounds i.e. serious offences. What this court is called upon to pry into is what is the serious offence committed by the Claimant; what is the disciplinary procedure laid down by the Conditions of Service and was the laid down procedure followed? The law is trite that where an employee is dismissed or his appointment is terminated or there is a demotion on the grounds of misconduct, all that the employer needs to establish to justify his actions is to show that the allegation was disclosed to the employee and that he was given an opportunity to be heard in his defence; and that is to say that the requirements of fair hearing were met and that the disciplinary panel followed any laid down procedure. The Courts have held that where a statutory employment is not determined in line with the laid down conditions such termination would be ineffective and null and void. On this contention counsel relied on the cases of OGBAJE V. AHUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR - 11855 (CA) P. 4-1, PARAS D-F, GOV. EKITI STATE V. OJO (2006) 17 NWLR (PT. 1007) PG 120 @ 121 PARAS D-F. Counsel submitted that it is inconsistent and an act of afterthought for the Defendants to compulsorily retire the Claimant on ground of serious offences and lead evidence that he was meant to serve only 18 years in the Army. The conditions of service governing the employment of all staff of the Armed Forces which became effective on the 12th day of July 2012, unequivocally provides that an officer's maximum years of service is thirty-five (35) years. Chapter 2, Condition 10(c) and (d) of the Armed Forces of Nigeria Harmonized Terms and Conditions for Officers 2012. It is the submission of counsel that the Defendants acted outside the Terms and Conditions of Service regulating the employment of the Claimant. By virtue of the Claimant's oath to be bound by the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers 2012 and by reason of such subsidiary legislation, his maximum years of service is no longer 18 (Eighteen), but 35 (Thirty-Five) years in the Nigerian Army. Counsel submitted that the argument of the defence that the Claimant's employment is for 18 years does not hold water and same is bound to fall apart like a pack of cards. The Supreme Court held In OLUFEAGBA V. ABDUL-RAHEEM (2009) 18 NWLR (PT 1173) 384 AT 463-464, PARAS H-A, that "In an employment with statutory flavour, the reason for the termination of the employment is very crucial to the case of both parties. The reason must be ascertainable and must be in accordance with the letter of appointment, governing regulation and statutory provisions." The apex Court went further and stated that where an employer flagrantly omitted to comply with the procedure for termination in the prescribed way and manner then that termination is absolutely null and void. Counsel urged the Court in the light of the compelling evidence put forward by the Claimant, to declare the compulsory retirement of the Claimant null and void. Section 45 to 114 of the Armed Forces Act provides a list of various offences for which an Officer is to appear before a Court-Martial. What is appalling is that there is no provision for "serious offences" as captured by the letter of compulsory retirement. One then begins to wonder how an Officer can be compulsorily terminated for an offence he does not know and unknown to law. This in its very nature portrays the wrongful and unlawful termination of the appointment of the Claimant. Counsel referred the court to the decision of the Supreme Court III OKEREKE V. YAR' ADUA (2008) 12 NWLR (PT 1100) 95 AT 127 PARA E where the Court held that: "Where legislation lays down a procedure for doing a thing there should be no other method of doing it." The Military is known for its regimented lifestyle and for an Officer who has served for not less than 26 years to be compulsorily retired on disciplinary grounds without following the laid down procedure is tantamount to not granting the Claimant his right to fair hearing. Section 123 of the Armed Forces Act provides as follows: "Before an allegation against a person subject to service law under this Act (in this section referred to as the "accused") that he has committed an offence under a provision of this Act is further proceeded with, the allegation shall be reported, in the form for a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner." It is the submission of counsel that before the compulsory retirement of the Claimant there was no charge against him neither was he subjected to a trial by Court-Martial as provided for in the Armed Forces Act. It is without a shadow of doubt that the Claimant did not commit any offence that warranted his compulsory retirement by the Defendant. There is no evidence before the Court of the commission of any offence whether petty or serious misconduct. Counsel therefore urged the Court to set aside the letter of compulsory retirement and declare same as wanton breach of the principles of natural justice. It is contended that more importantly and indeed germane to the determination of Suit is suit is the reason given by the Defendants for the compulsory retirement of the Claimant and the evidence adduced in proof of the facts before this Court. Exhibit CW1A 1-3 conspicuously states that the reason/grounds for compulsory retirement is on "disciplinary grounds i.e. serious offences". The Defendants by their pleadings state that the compulsory retirement was as a result of the Claimant exceeding the 18 years of service contained in his letter of commissioning, Exhibit CW1A 1-3. With respect to Exhibit CW1A 1-3, the said oath provides: “….. l will truly and faithfully serve the Federal Republic of Nigeria as by law established as an officer for .18 years and that I will as duty bound so serve for the period of my engagement or re-engagement as the case may be .... and will subject myself to all Acts, subsidiary legislation and service regulations which now are or shall from time to time be in force and applicable to the Arm in 'which J am to serve during the period of my engagement or re-engagement as the case may be." The it is submitted speaks volume of the nature of the employment of the Claimant. Assuming but not conceding that he on his part did not apply for re-engagement, does he cease to be an Officer of the Army? By Mathematical calculation, the Claimant's 18 years in service would be 5th day of September 2012 by virtue of his Oath of Office. The Claimant after the year 2012 was not disengaged from the Army, he continued to truly and faithfully serve the Federal Republic of Nigeria and received Commendation/Awards in 2014 and 2015. The question arising therefrom is does the Nigerian Army particularly the Office of the Chief of Army Staff give awards/commendation to individuals it does not consider to be staff? Would it not have been out of place to state on the letter of compulsory retirement that the Claimant was being retired simply because he had overstayed his employment with the Nigerian Army? There are plethora of judicial statements and authorities on the right of an employer to fire or terminate the employment of an employee for good or bad or no reason at all. The law however is that where an employer gives reasons for the termination he is bound to prove same satisfactorily. Counsel referred the court to the case of INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANAGEMENT BOARD V MRS JUMMAI ANYIP (2011) 5 SC (PT 1) 54 AT 71 LIN E 15-23, in support of the position that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has proffered any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more. It is the submission of counsel that through out of the case of the Defence, they claimed that the reason for termination was due to the fact that the Claimant overstayed the number of years to serve in the Nigerian Army, however Exhibit CW1 B states the contrary. It is argued that the Defendants have woefully failed to prove the reason for the compulsory retirement of the Claimant. What is more is the fact that the fact led and the evidence adduced is inconsistent. Counsel contended it is trite that evidence adduced must be in line with pleadings. On this contention counsel relied on the case of ACHONU V. OKUWOBI (2017) LPELR 42102 SC. In concluding his submission, counsel urged that on the strength of the above cited statutory provisions and judicial authorities, the compulsory retirement should be set aside the Claimant's letter of compulsory retirement dated 9th June 2016 as same is wrongful, unlawful, unconstitutional, invalid and contrary to the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers 2012. The Courts have been urged not to look outside the terms and conditions of a contract of employment for these are the terms that spell out unambiguously how and when to terminate the employment and the termination is carried out in the manner provided. Parties are bound by their contract and to look outside the terms of the contract makes no meaning of the contract. Counsel urged the court to grant all the reliefs claimed by the Claimant in this Complaint and statement of facts in the interest of justice, equity and good conscience. THE 1ST- 5TH, 7TH – 9TH DEFENDANTS REPLY ON POINTS OF LAW. In the reply on points of law counsel submitted that though the claimant in his final written address submitted that the claimant's employment is governed by the Armed Forces Act cap A 20 Laws of the Federation of Nigeria 2004, Armed Forces of Nigeria Harmonized Terms and conditions of Service for Officers, 2012 admitted as Exhibit DW1 A, and Exhibits CW1B and CW1C. Counsel placed heavy reliance on the provisions of the said exhibit DW1 A, to submit that the claimant's employment was not terminated as required by statute. The Armed Forces Act cap A 20 Laws of the Federation of Nigeria 2004 specified the number of years commissioned officers can serve in the employment of the 1st defendant. It further provided how a commissioned officer shall apply for re-enlistment. It is submitted an officer like the claimant in this case, who failed or neglected to comply with the said provision cannot hang onto exhibit DW1 A, to avoid the consequence of provision and the consequence of such failure. The power to make the said exhibit DW1 A, was derived from the Armed Forces Act; cap A 20 Laws of the Federation of Nigeria, 2004. The settled position of law is that a subsidiary legislation or regulation made pursuant to a statute cannot take precedence over the provisions of the substantive statute on the subject. Counsel anchored this submission on the case of NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR V FAMFA OIL LIMITED (2012) ALL FWLR (PT.635) 204 @ 238-239 paras H-B, where the Supreme Court, while expounding the law on the status of a subsidiary legislation vis-à-vis substantial legislation held: "The Petroleum Act is substantive or principal law. It is the principal law that provides subsidiary legislation the source of its existence. Without principal law, there can be no subsidiary legislation, and so subsidiary legislation must conform with the principal law". If any provision of the regulations is inconsistent with the provisions of the act/statute, the provisions of the regulation shall to the extent of its inconsistency be declared void. " And in the case of OSADEBE V ATTORNEY GENERAL OF BENDEL STATE (1991) ELR SC 1. the Supreme Court held: "For it is the law that where legislation derives its force from a paramount enactment, the subordinate legislation, in appropriate metaphor, draws its lifeblood from the paramount enactment and cannot have a wider binding force than the later". Counsel urged the court to hold that the provisions of Exhibit DW1 A, cannot override the express provisions of Section 30(3) of the Armed Forces Act; cap A 20, Laws of the Federation of Nigeria, 2004, from where the said exhibit draws its blood from. Counsel to the claimant made heavy weather on the duty of an employer who advance reasons for termination of his employees contract to prove same, and cited the case of Institute of Health Ahmadu Bello University Hospital Management Board V Mrs Jummai Anyip (2011) 5 SC (Pt1) 54. It is submitted by counsel that the said case is distinguishable from the instant case. In the instant case, the claimant's duration of service was expressly defined in Exhibit CW1 B, and the Armed Forces Act; cap A 20, Laws of the Federation of Nigeria, 2004. Counsel urged the court to hold that the claimant's employment was validly terminated. The claimant neither pleaded nor led evidence that his employment was 35 years. The fulcrum of his pleading is that the defendants did not comply with the procedure for disciplining of officers before terminating his appointment with the 1st defendant. Curiously, in his written address, (paras 3.18-3.21) counsel argued strenuously that the claimant employment with the 1st defendant is for 35 years. It is trite that address of counsel no matter how brilliant cannot take the place of evidence. Counsel urged the court to discountenance the submission as there was no pleading or evidence to support same. On this submission counsel relied on the case of UGO V AUGO (2017) ALL FWLR (902) 903 @ 921. On the whole, counsel urged the court to dismiss this suit for being vexatious, frivolous and lacking in merit. COURT’S DECISION After a careful consideration of the originating process commencing this suit, the joint statement of defence and its accompanying processes, the addresses of counsel and the oral submissions counsel in this matter. The issues calling for resolution in this suit is: ‘‘Whether the compulsory retirement of the claimant from service was proper, valid and sustainable in law’’. The claimant in this suit was enlisted into the Nigerian Army on 5th day of September 1994, as 2/Lt, and rose to the rank of Colonel. The claimant as a regular officer is to serve for 18 years but with an option of re-engagement, subject to approval by the appropriate authority. See exhibits CW1 B and CW1 C. However, vide letter dated 9th day of June 2016, tendered as exhibit CW1A 1-3, the claimant was compulsorily retired in pursuance of the provisions of paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised), on ground of serious offence(s). See exhibit DW1A. This is the reason that the defendant gave for compulsorily retiring the claimant from service. According to the claimant the reason given for his compulsory retirement was unfounded and a ruse as he has never at any time since the date of his commission as an officer committed any act that could warrant any disciplinary measures against him. The claimant further stated that he has never been invited by any tribunal or body on account of any misconduct, indiscretion or any offence however or howsoever described. The claimant stated that the action of the defendants offend statutory provisions of the Armed Forces Act. The claimant stated he was not given any chance to defend himself before he was punished by the purported compulsory retirement. And he was punished without any notice, query, trial query, arraignment, court martial or even warning oral or written. He stated that his compulsory retirement is a punishment and is tantamount to dismissal. However, in their joint statement of defence and in line with the evidence of their sole witness DW1, the defendants avers and stated that the reason why the claimant was compulsorily retired was that the claimant has signed to serve for only 18 years in accordance with his commission exhibit CW1 B and the provisions of section 30 of the Armed Forces Act. The defendants maintained that the claimant has no locus to complain of his compulsory retirement as he overstayed and has not applied for re-engagement of his service. The claimant has under cross examination stated that he applied for re-engagement and it was granted. He also stated that he does not have the application with him it is with the Military Secretary. It is trite law that he who asserts must prove. See sections 131 and 132 of the Evidence Act 2011, VEEPEE INDUSTRY V COCOA INDUSTRY LIMITED, FAJEMIROKUN V GB NIGERIA LIMITED (2009) 5 NWLR (PT.1135) 588. However, it must be noted that the burden of proof is not static it tilts with the evidence adduced before the court. See section 133(2) of the Evidence Act 2011. In any event in civil proceeding like the one at hand, burden of proof is discharged by preponderance of evidence on balance of probabilities. See section 134 of the Evidence Act. The first burden is on the claimant to prove his case, which is that his compulsory retirement constitutes/constituted an unfair and or wrongful dismissal, the compulsory retirement amount to unfair practices, setting aside letter of 9/6/16, for being unlawful, invalid, unconstitutional, void and of no effect whatsoever, reinstatement of claimant, restraining the defendants their agents, privies from harassing or subjecting claimant to any form of arbitrariness and compensation, aggravated and exemplary damages in the sum of one Billion Naira. The action of 7th and 8th defendants amount to abuse of office. The question to be answered now is ‘has the claimant proved his case to warrant these reliefs sought before the court? A case is proved either by oral evidence or documentary/real evidence or a combination of all of this. It is not the quantum of evidence/witnesses, but the quality of the evidence/witnesses that matters. See ONWUKA v. EDIALA  1 NWLR (Pt. 96) 182 at 187 and LAFARGE CEMENT WAPCO NIGERIA PLC V OWOLABI  LPELR-24385(CA), NIGERIAN ARMY V JACOB IYELA  LPELR-2014(SC);  7 - 12 SC 35;  18 NWLR (Pt.1118) 115: The Supreme Court in the case of EX-CAPT CHARLES C. EKEAGWU V NIGERIA ARMY V (2010) LPELR-1076(SC), has stated the law that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are Whether the termination/dismissal/retirement of the plaintiff is wrongful, and What is the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful? However, the apex court was quick to add that where the plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon re-instatement the plaintiff/party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable. As can be gleaned from the evidence before the court oral and documentary, the claimant’s employment is governed by exhibit CW1B, the provisions of the Armed Forces Act and the Harmonized Terms and Conditions of Service for officers 2012 (Revised). The claimant has vide exhibits CW1 B and CW1 C, proved that he is an employee of the defendants. The claimant has vide exhibit CW1 A 1-3, been compulsorily retired from service, which he is challenging by this action. The averments in paragraphs 11 to 32 of the statement of facts and the corresponding evidence adduced in the witness statement on oath adopted by CW1 have clearly shown that how the terms and conditions of service as contained in exhibit DW1A were breached, in that the clamant was compulsorily retired from service on ground of disciplinary i.e serious offences, without being tried for the alleged purported offences or being told of what those offences are or were, without any query or even afforded opportunity of depending himself. In determining any employment that is protected by statute or what is termed as employment with statutory flavor, as in this case, compliance with laid down rules and regulation is mandatory any deviation or summersault in following the appropriate procedure by the authority or body charged with responsibility of taking the disciplinary action against the employee will vitiate and nullifies the entire process and any action or result emanating from such exercise will amount to nothing. There is no short cut, once the employment is protected by statutory provisions, appropriate procedure must be adopted in bringing the relationship to an end. See IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION 2005 7 SC PT.III 135, SHITA-BAY V PUBLIC SERVICE COMMISSION 1981 1 SC 26, UDO V CROSS RIVER STATE NEWSPAPER CORPORATION, UNIVERSITY OF LAGOS V OLANIYAN 1985 1 SC 199CBN & ANOR V IGWILLO 2007 4-5, SC 154. The claimant has vide his pleading and evidence before the court stated that the provisions of the Harmonized Terms and Condition of Service for Officers 2012, (Revised), were not strictly complied with by the defendants before his compulsory retirement. According to the provision of regulation 09.02 there are several grounds based on which an officer can be compulsorily retired from service they includes; on disciplinary grounds, on account of ill-health, on ground of medical unfitness, disability, failed promotions 3 times, disciplinary grounds on serious offences, undeployability as a result of restructuring and/or lack of establishment, on attaining the age ceiling of his rank, incompetence, indolence, disloyalty to constituted authority and failure at staff course. From the content of exhibit CW1A 1-3, the claimant was compulsorily retired from service on ground of disciplinary i.e serious offences, regulation 09.02c(4). The defendants, though not impugning exhibit CW1A 1-3, never the less argued that the compulsory retirement of the claimant was predicated on his overstay. According to the defendants the claimant vide exhibit CW1B has signed to serve for 18 years, but he has over served with 8 years. DW1, who testified on behalf of the defendants under cross examination alluded to the claimant’s not following procedure in getting re-engagement as serious offence. To my mind the position of the defendants is a clear departure from what the defendants have stated in exhibit CW1A 1-3 as the reasons for compulsorily retiring the claimant from service. The defendants have not referred the court to any of the provisions of the Armed Forces Act or the Harmonized Terms and Condition of Service for Officers 2012, (Revised), where overstaying or serving beyond 18 years in the military was made to be a disciplinary i.e serious offences. If it is true that the claimant was compulsorily retired for overstaying, that reason should have been in exhibit CW1A 1-3, as the reason for compulsory retirement of the claimant and not ‘disciplinary i.e serious offences’. Alas that is not the case. Exhibit CW1A 1-3, is very clear and unambiguous and left no one in doubt as to the reason for compulsorily retiring the claimant from service. It is trite law that in determining contract of employment an employer is not bound to give reasons for determining the contract. But where reason has been given the onus of proving the reason lies squarely on the employer. The defendants having stated vide exhibit CW1A 1-3, that the claimant was compulsorily retired based on ground of disciplinary i.e serious offences are duty bound to adduced credible evidence in proof of that reason and not offer different reason contrary to what was stated in exhibit CW1A 1-3. The defendants have not pointed out to the court in exhibit CW1A 1-3, where ‘not following procedure for re-engagement’ is stated to be a serious offence in either the Armed Forces Act or in the Harmonized Terms and Conditions of Service for Officers 2012 (Revised) or in exhibit CW1B, the letter of commissioning. The defendants seems to be under the impression that the claimant having served for 26 years, the contract of service has elapsed as at the time the claimant served for 18 years and they are acting under the assumption that the claimant is no longer entitled to be in service. The defendants may have taken the position they have taken based on their own interpretation of section 30 of the Armed Forces Act. A careful examination of the provisions of section 30 of the Armed forces and the content of exhibit CW1B, which the defendants heavily relied in taking their position, will revealed that though section 30 of the Armed Forces Act and exhibit CW1B, have pegged the tenure of claimant’s service to be 18 years, the said section and exhibit CW1B, have made ample provisions allowing the claimant who had served for 18 years to continue with his service uninterrupted for up to 22 years, this is however subject to approval by the appropriate authority. The claimant who served for 22 after obtaining approval can still have his service re-engaged for another period as the approving authority may grant. It is to be noted the second re-engagement can be without limitation. The defendants have argued that the clamant has not applied for extension of his service and there was no approval granting him re-engagement, therefore he cannot complain of wrongful retirement, as he has served his tenure of 18 years contained in exhibit CW1B and the provision of section 30 of the Armed Forces Act. The defendants have equally argued that the provisions of Harmonized Terms and Conditions of Service 2012, (Revised), regarding tenure are inconsistent with the provisions of section 30 of the Armed Forces Act, the regulations should therefore be declared null and void. Counsel urged the court to nullify regulation 02.12c, which provide for 35 years of service which the claimant under cross examination stated he is entitled to serve. In interpreting statutory or constitutional provisions a court of law is enjoined to give the statutory provisions their plain meaning thereby using literal rule of interpretation to construe the provision. Except where it will lead to absurdity. In any event a court is duty bound to interpret statutory provision by construing the entire provisions holistically and interpreting them to be in accord with the intention of the makers of the provisions. If the provisions of section 30 of the Armed Forces Act and Regulation 02:12c of the Harmonized Terms and Conditions of Service for Officers 2012, (Revised), are holistically examined, it will be seen that there is no conflict between the provisions of section 30 of the Armed Forces Act and the provisions of the Harmonized Terms and Conditions of Service for officers 2012, (Revised). The regulation only makes provisions for voluntary retirement and the maximum number of years an officer can serve thus why the use of the word ‘may’, which connote non-compulsion. Therefore, the Harmonized Terms and Condition of Service for Offices 2012, (Revised), were never meant to make it mandatory for an officer to serve for 35 years. What the provision of regulation 02.12 c did was to peg the period of service, if there is re-engagement, the service shall not exceed 35 years period. Therefore, in my view there is no conflict between the provisions of the Armed forces Act and the Harmonized terms and Conditions of service. I so hold. Having resolved the issue of conflict raised by the defendant, it will be appropriate at this juncture to determine the question of whether the claimant is in breach of the provision for applying for approval for re-engagement and whether if it is found that he has breached the provision for re-engagement that amounted to serious offence as stated by DW1 under cross examination. The claimant’s case is that he was compulsorily retired from service based on regulation 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers, exhibit DW1A, without him being tried for any disciplinary action or tried before court martial. He was not given opportunity to depend himself as the serious offences based on which he was compulsorily retired were not made known to him. The defendants on their part insisted that the claimant was compulsorily retired because he did not apply for re-engagement after serving for 18 years in line with his commission as evidenced in exhibit CW1B and section 30 of the Armed Forces Act. At a glance the argument of the defendants appears to be attractive, but, a careful and meticulous examination of the provision of section 30 of the Armed Forces Act and Exhibit CW1B will expose the fallacy of the argument canvassed by the defendant in respect of the claimant not applying for approval for re-engagement. Having regard to the facts and circumstances of this case the defendants are estopped from claiming that the claimant has not applied for and was not granted approval for re-engagement in line with section 30 of the Armed Forces Act. This position is taken having regard to the position of law that a contract of employment can be oral or in writing, in fact it can be inferred or by conduct of parties. By exhibit CW1 B and the provisions of section 30 of the Armed Forces Act, the claimant’s 18 years of service with the defendants elapsed on 4th day of September 2012. But, by the same provision of the law and exhibit CW1B, if he desired to continue in service he has the option of applying for re-engagement either before or after the expiry of the period of 18 years. It is to be noted that the reasons given by the defendants in the letter of compulsory retirement exhibit CW1A 1-3, was that of disciplinary i.e serious offences and not overstay or completing service of 18 years or not applying for re-engagement or absence of approval for re-engagement. The issue of clamant having served his period of commission and overstayed his commission came up as a defence. This clearly shows that the defendants are confused as to the actual reasons why the claimant should be compulsorily retired. It is interesting to note that the claimant under cross examination stated that he applied for re-engagement and it was granted, when he was asked of the application, he stated that the application is with the Military Secretary. DW1, the witness who testified on behalf of the defendants stated that she is a lawyer and work with the legal Department of the Military, in view of the fact that DW1 does not work where the application for re-engagement are made she is not competent witness to testify as to issue of application for re-engagement. The appropriate officer that should have given such testimony is an officer serving in the relevant department or the approving authority. In view of lack of credible evidence to prove non application for re-engagement, I prefer the version given by the claimant to the effect that he applied for re-engagement and same was granted. Even, if the position taken above is wrong, still the defendants cannot be heard to dispute that the claimant was not re-engaged to continue his service. The reason being that the defendants knew that the 18 years terms of service of the claimant elapsed in 2012 and still allowed the claimant to continue to serve the defendants and in the process earned laurel and commendations for his hard work, commitment, sincerity, resourceful and leadership. See exhibits CW1D, CW1E, CW1F, CW1G, CW1H, CW1I and CW1J. The conduct of the parties as depicted in the exhibits before the court clearly established beyond reproach that the claimant has been re-engaged in line with the provision of section 30 of the Armed Forces Act and exhibit CW1B. The defendants are in law deemed to have re-engaged the clamant by their conduct and are estopped from denying giving approval for his re-engagement. For the simple reason that they allowed the claimant to continue his service after the expiry of 18 years of service in year 2012 My position is fortified by the provisions of section 169 of the Evidence Act 2011, Section 169 of Evidence Act states that: ‘‘When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person's representative in interest, to deny the truth of that thing’’. In view of the clear provisions of the evidence Act, the defendants will not be allowed in the circumstances of this case having made the claimant believe that his re-engagement has been approved to approbate and reprobate without following due process in bringing the relationship to an end. See OYEROGBA V OLAOPA (1998) 13 NWLR (PT.583) 509. The finding above means that if the claimant is to be compulsorily retired from service due process has to be followed. The defendants having failed to convince the court of the disciplinary ground for compulsorily retiring the claimant i.e serious offences, as stated in exhibit CW1A 1-3, the said exhibit CW1A 1-3, is therefore null and void and of no effect. Exhibit CW1A 1-3 having been issued not in line with Harmonized Terms and Conditions of Service for Officers 2012, (Revised), is not capable of retiring the claimant as it was issued in violation of extant rules the letter is null and void and of no effect for having been issued without due process. It is hereby set aside. With the finding that exhibit CW1A 1-3 is null and void of no effect whatsoever the claimant is entitled to an order for reinstatement. In the circumstance I hereby ordered reinstatement of the claimant back to his post with all his rights and privileges. In line with the decision of the Supreme Court in the case of EX-CAPT CHARLES C. EGWU V THE NIGERIA ARY (supra), the relief on payment of damages become moot and academic, dissipating energy in considering it is not necessary, I hereby discountenanced it. For avoidance of doubt the orders of the court are: 1. The compulsory retirement of the claimant vide exhibit CW1A 1-3, is hereby declared null and void and of no effect whatsoever, as it was not done in line with extant rules and regulations. 2. The letter of compulsory retirement exhibit CW1A 1-3 is hereby set aside for being null and void and of no effect whatsoever. 3. The claimant is hereby reinstated back to his post in the Nigeria Army with all his rights and privileges. 4. The claimant is equally entitled to all his salaries and emoluments from the date of his compulsory retirement i.e 9/6/16 to date and subsequently, until he is appropriately discharged from service. Judgment entered accordingly. Sanusi Kado, Judge.