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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 23rd February, 2015 SUIT NO: NICN/ABJ/231/2014 Between: Captian Mohammed Kamilu Claimant AND Nigeria Army & 2 Others Defendants REPRESENTATION Parties absent; Shaibu Isah Esq. with Grace Edogbo Miss for the claimant; Col. Umaru Muku Rtd for the defendants. JUDGMENT By an Originating Summons (O/S) dated and filed on the 21/08/2014, the claimant sought for the determination of the following questions: 1. Whether having regards to the Directive of the Defendants conveyed vide the Defendants' letter AHQ DATOPS/G7/230/98 dated 31st May, 2013, titled "GENERAL INSTRUCTIONS FOR THE RE-RUN OF SENIOR STAFF COURSE QUALIFYING EXAMINATION 2013 SCHEDULED FOR 22-26 JULY 2013 AT HEADQUARTERS NIGERIAN ARMY TRAINING CENTRE" and its annexures the re-run of Senior Staff Course Qualifying Examination 2013 scheduled for 22-26 July, 2013 is a fresh, distinct and separate attempt at the Senior Staff Course Qualifying Examination for the purpose of paragraph 09.02C (2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012(Revised). 2. Whether having regards to the result of the Re-Run Senior Staff Course Qualifying Examination 2013 released by the Defendants and conveyed vide the Defendants' letter AHQ/DATOPS/G7/230/98 dated 29th August 2013, titled “RELEASE OF RESULT THE RE-RUN SENIOR STAFF COURSE QUALIFYING EXAMINATION 2013” and its Annexures, the re-run examination attempted and failed by the Claimant can be interpreted to be his third and final attempt at the Senior Staff Course Qualifying Examination for the purpose of paragraph 09, 02C (2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012(Revised). 3. Whether having regard to the aforementioned documents from the Defendants and the resultant conduct of the parties, the Defendants can validly reverse the result and status of the Claimant in respect of the re-run Senior Staff Course Qualifying Examination as it purported to have done vide the Defendants' letter AHQ/DATOPS/G7/230/98 dated 25th February, 2014, titled "REVERSAL OF SENIOR STAFF COURSE QUALIFYING EXAMINATION RESULT AND STATUS OF OFFICERS AT THE RE-RUN SENIOR STAFF COURSE QUALIFYING EXAMINATION HELD IN KONTAGORA FROM 22-26 JULY 13 MAJ CH AJOKU(N/10470) AND 216 OTHERS". 4. Whether having regard to result of the Re-Run Senior Staff Course Qualifying Examination released and conveyed vide Defendants letter AHQ/DATOPS/G7/230/98 DATED 29th August, 2013 and the status of the Claimant as reflected in the document annexed thereto, Defendants can validly retire the Claimant from the Nigerian Army on the ground that the Claimant has failed Promotion Examination or CAPEX at the third and final attempt pursuant to the provisions of paragraph 09.02C(2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012 (Revised). 5. Whether having regard to the above, the Defendants' letter: "NOTIFICATION OF RETIREMENT: FAILURE AT PROMOTION EXAMINATION" dated 2nd May 2014 served on the Claimant by the Defendants pursuant to paragraph 09.02C (2) of the Harmonised Terms and Conditions of service (HTACOS) for Nigerian Armed Forces Officers 2012 (revised) on the ground that the Claimant was “unsuccessful at the Senior Staff College Qualifying Examination 2013 at the third attempt” is lawful and valid. In a situation where the question are resolve or answered in favour of the claimant, the claimants then claimed the following reliefs from the court: (1) A DECLARATION that the Re-Run Senior Staff Course Examination 2013 directed to be held and held by the Defendants from 22-26 July, 2013 is not a fresh, separate and distinct attempt at the Senior Staff Course Qualifying Examination for the purpose of paragraph 09.02C (2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigeria Armed Forces Officers 2012 (Revised). (2) A DECLARATION that the result of the Re-Run Senior Staff Course Qualifying Examination 2012 released and conveyed by the Defendants vide Defendants' letter AHQ/DATOPS/G7/230/98 dated 29th August, 2013, titled "RELEASE OF RESULT THE RE-RUN SENIOR STAFF COURSE QUALIFYING EXAMINATION 2013" and the annexed document cannot be validly and reasonably interpreted to be the Claimant's third and final attempt at the Senior Staff Course Qualifying Examination for the purpose of paragraph 09.02C (2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012 (Revised). (3) A DECLARATION that the Defendants cannot validly reverse the result and status of the Claimant in respect of the Claimant as reflected in result of the Re-Run Senior Staff Course Qualifying Examination 2013 released by the Defendant vide AHQ/DATOPS/G7/230/98 dated 29th August, 2013 as the Defendants purported to have done vide Defendants' letter AHQ/DATOPS/G7/200/98 dated 25th February, 2014. (4) A DECLARATION that having regard to the result of the Re-Run Senior Staff Course 2013 released by the Defendants vide its letter AHQ/DATOPS/G7/230/98 dated 29th August, 2013 and the document annexed thereto and the status of the Claimant as reflected therein, the Claimant has failed the Senior Staff Course Examination at second Attempt and NOT at Third and Final Attempt. (5) A DECLARATION that the letter "NOTIFICATION OF RETIREMENT: FAILURE AT PROMOTION EXAMINATION" Reference AHQ/MS/G1/300/226 dated 2nd May, 2014 served on the Claimant by the Defendants purportedly pursuant to paragraph 09.02C (2) of the Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012 (Revised) on the ground of Claimant's purported failure of the “Senior Staff College Qualifying Examination 2013 at the third attempt” is null, void, invalid and of no legal effect. (6) AN ORDER compelling the Defendants to withdraw the letter "NOTIFICATION OF RETIREMENT: FAILURE AT PROMOTION EXAMINATION" with Reference No. AHQ/MS/G1/300/226 dated 2nd May, 2014 served on the Claimant by the Defendants purportedly pursuant to paragraph 09.02C(2) of the Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces officers 2012 (Revised) on the ground of Claimant's purported failure of the "Senior Staff College Qualifying Examination 2013". (7) AN ORDER restraining the Defendants from compulsorily retiring the Claimant from the Nigerian Army or in any other way adversely interfering with the Claimant's employment with the Nigerian Army on the ground that the Claimant failed the Re-Run Senior Staff Course Qualifying Examination 2013 held from 22- 26 July, 2013 at a Third and Final Attempt. (8) AN ORDER compelling the Defendants to allow the Claimant sit for the statutory third Attempt at the Senior Staff Course Qualifying at the next Senior Staff Course Qualifying Examination in accordance and compliance with the relevant provisions of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces officers 2012 (Revised). Originating Summons was accompanied by a 41 paragraph affidavits, 10 Exhibits and a written address of 12 pages. In the said claimant written address counsel E.M Dodo Esq. formulated a lone issue for determination as follows: “Whether the defendants can validly retire the claimant, compulsorily or otherwise from the Nigerian Army pursuant to paragraph 09. 02C (2) of the Harmonised Terms and Conditions of Service (HTACOS) for Nigerian Armed Forces Officers 2012 (Revised) based on the claimant’s failure at the Re-Run Senior Staff Course Qualifying Examination S.S.C.Q.E 2013 held from 22 – 26 July 2013” Counsel contended that judging from the circumstances of this cases, the exhibits, the dealings or transaction or relationship between the claimant and the defendant including the correspondences (exhibits) the defendant cannot rely on the July re run promotion examinations of officers for the purposes of asking the claimant to voluntarily retire; Counsel concede to the provision of the Harminised Terms and Conditions of Service of officers 2012 paragraph 09.02C (2) to the effect that the defendant can retire an officer who fails a promotion examination on 3 attempt – but urged the court to hold that the re run examination was not the 3rd attempt but the 2nd; and therefore cannot be used as the final attempt for the purpose of disengagement. It is the submission of counsel that the Chief of Army Staff who originated and initiated the directive of the re run categorically stated it to be: “Re-Run Senior Staff Course Qualifying Examination (SSCQE) 2013”. Counsel claimed that the result of the re-run was stated to be a 2nd attempt as shown in Exhibit MKU 3. Counsel drew the courts attention to Exhibit MKU1 and MKU 2 and urged the court to hold that the re-run was a repeat of 2013 promotion examination due to mass failure of candidates; Counsel urged the court also to have a holistic look and reading of Exhibit MKU 4, MKU7, MKU 8 and MKU 1 and 2 to come to the conclusion that the re-run examination was intended by Chief of Army Staff who initiated it to be a repeat. Counsel also emphasized paragraphs 1 and 2 of Exhibit MKU 4 which he said was a facit admission of this fact. The law, counsel contended is against a party reprobating and approbating as the defendant cannot say the re run was a 2nd attempt in one breath and in another regard the re-run as a third and final attempt on the part of the claimant. Counsel call in aid the case of Chief Okey Mbanaso Vs. Davidsmith Officer & Others 2012 LPELR 19 683; Okonkwo Vs. Kpajie 1992 NWLR (Pt. 226) 633 1992 2 SCNJ 290. Counsel also cited the case of Nigerian Army Vs. Brig. General Mande Aminu-Kano 2010 5 NWLR (Pt. 1188) 429; Chief Joshua Dariye Vs. FRN 2011 LPELR 4151(CA) to show that a document such as the claimant exhibits needs a holistic reading and interpretation. Counsel also referred the court to the case of Okonkwo Vs. Kpajie and urged the court to hold that, the defendant having represented to the claimant in Exhibit MKU 3 that the re-run was his second attempt cannot reverse or turn around to use the same re-run as his 3rd and final attempt and therefore force him to disengage. Counsel urged on the court to apply the principle of ordinary and literal meaning in construing documents as stated in the cases of UBN Vs. Nwaokolo 1995 5 NWLR Pt. 400 127; AG of Nasarawa State Vs. Plateau State 2012 LPELR 97 30 SC; Chief Wale Taiwo Vs. Lagos State Government & Another LPELR (4999) CA. Counsel finally urged the court to grant all the reliefs of the claimant. In response to the Originating Summons, the defendants filed 17 paragraphs counter affidavit depose to by Adamu Yusuf Esq. a Legal Assistance in the Directorate of Legal Services Army Headquarters Abuja. The counter affidavit is supported with a written address of seven pages wherein counsel to the defendants, Johnbull Adaghe Esq. after summarizing the facts of the case posited that the claimants case should be dismissed having failed to satisfied the court that his case is meritorious. Counsel referred the court to paragraph 09.02(c)(2) of part 1 of Armed Forces of Nigeria Harmonised terms and condition of service for officers 2012 and posited that there is no such provisions relating to the Army Promotion examinations such as carry over or supplementary and that there is no distinction or categorization of the Army Examination; In his context, a re-run examination is the same as substantive examination. Counsel further submitted that where the word of a statute are clear and unambiguous as in this Harmonised Terms and Conditions of Service 2012, the court should not import any extraneous interpretation to it. Counsel urged the court to give the word of the enactment/term and condition of service its ordinary and literal meaning since it is binding upon the parties; Counsel called in aid of this submission, the case of Awuse Vs. Odili 2004 All FWLR Pt. 212 1611 at 1639 D-E. Counsel contended further that in a situation where a re-run examination of this nature is not considered as a substantive examination for the purpose of numbering and counting the number of times the claimant has failed the promotional examination in question, such narratives or argument will be tantamount to allowing a written intention to vary or override the provision of a bye law – which is the Harmonised Terms and Condition of service for the Officers of the Armed Forces 2012. Counsel also referred the court to paragraphs 15, 17 and 27 of the supporting affidavit to the Originating Summons and argued that since he the claimant has admitted in those paragraphs as failing in the promotional examination for officers on three occasions, he is entitled to voluntarily retire or compulsorily retired by the Nigerian Army. Counsel urged the court to regard the April 2013 examination conducted for officers in the Nigerian Army as a regular and authentic examination as those who passed were promoted to the next rank accordingly. The re run examination, counsel submitted was also an authentic and regular promotion examinations for officers of which those who passed or were successful were promoted accordingly, counsel argued and submitted also that the essence of the re run was to bridge the gap of seniority amongst course mates as it creates an opportunity for those who failed in April promotion examinations to catch up with their colleagues who were successful in that same examination. According to counsel, the nomenclature “re run” does not necessarily diminishes or belittles or reduces the status of the July 2013 own as the exams are for the promotion of officers in the Nigerian Army. Counsel submitted that the representation made to the claimant that his re run promotional examination was his 2nd attempt should not be made to override the express provision of the Harmonised Terms and Condition of Service for officers 2012, which was approved by the Army Council, a body higher than the defendant. Counsel urged the court not to treat or interpret the word re run to mean “repeat” or “carry over”. Counsel referred the court to exhibit MKU 1 and MKU 2 which refers to the July 2013 promotion examination as a fresh attempt; He also submitted that a fresh attempt is not and cannot be a moot examination or a replacement of the earlier one to make it not to count in terms of the number of times the claimant attempted the examination. Counsel finally urged the court to dismiss the claimant’s case. In his reply on point of law the claimant counsel E.M. Dodo Esq. posited that once the defendant has conceded that they have made a representation to the claimant that the re-run July 2013 promotion examination was his 2nd attempt, they should not be allowed to renege from that position as doing so would mean allowing a party who has committed illegality to benefit from same. Counsel call in aid of this submission to the case of Saleh Vs. Monguno 2006 15 NWLR (Pt. 1001) 316. Counsel stated further that the defendant who had no authority to order a re-run in 2013 and count it as a regular promotion examination and not a repeat, should not be allowed to benefit from such illegality. Counsel cited the case of Oyewale Vs. Lawal (2008) LPELR – 4118 (CA) Counsel submitted further that if indeed the re-run examination is not authorized or it is illegal, the normal expectation of any person is that such examination be annulled or cancelled; Rather than do that the defendant proceeded to use the re-run examination against the interest of the claimant by retiring him or asking him to retire; Counsel in his argument regards this approach as being against common sense, equity and natural justice; I have looked at the various processes filed in this suit: I have also painstakingly considered the various submissions by counsel, the authorities cited and the documents sought to be considered in this suit; Proceedings of this nature, commenced by originating summons usually involves questions of law rather than disputed facts or issues. In otherword, the proceedings in this case do not involve hostile or controversial issues of facts that may be apparently disputable: See the case of Doherty Vs. Doherty 1969 NMLR 24; Njideka Ezeigwe Vs. Chief Benson Chuks Nwawulu & Others 2010 2-3 SC(Pt. 1) I The facts of this case are as follows: The claimant who is at present, a Captain in the Nigerian Army was commissioned as a regular combatant on the 27th of September 2003. As part of the requirement for promotion from the rank of Captain to Major, the claimant was required to pass the Senior Staff College Qualifying Examination; Consequently, he sat for the said examination in the year 2012 and failed; on the 22-26th April 2013, he also sat for the examination and failed; Due to mass failure of participants in the examination, a re-run was ordered by the Chief of Army Staff as fresh attempt for the officers concerned: The claimant in this case participated in the re-run as directed and had a failed result. Consequently he was served with a letter on 2nd of May 2014 notifying him of his retirement as the re-run promotion examination of which the claimant could not passed was considered as a third and final attempt. The claimant has approached this court through an originating summons invoking the interpretative powers and jurisdiction of the court while contending that from various exhibits and correspondences emanating from the defendants, the re-run promotion examination should be considered as a 2nd attempt. On the other hand, the defendants in this case has contended that the re-run which was held on the 22-26 of July 2014 was the claimants third and final attempt and hence he should voluntarily retire or else he will be compulsorily retired. By Exhibit MKU 2 dated the 31st of May 2013, a letter signed on behalf of the Chief of Army Staff by Colonel K.A. Isoni mandated all participants who failed the April 22-23 2013 promotion examination for Senior Staff to report at Kontagora for a re-run examination. The letter by paragraph 2 stated in the relevant portion as follows:- “A fresh attempt of the SSCQE 13 will thereafter be conducted at HQ NATRAC Kontogora from 22-26 July 2013” In Exhibit MKU 4, dated the 25th of February 2014 signed by Major General B.O. Ologundudu on behalf of the Chief of Army Staff, the defendant referred to the re-run examinations in paragraphs 2 and 3 as follows: 2 “In view of the large number of officers that failed to qualify, the above named officers and 216 others were directed to report to HQ NATRAC for a re-run SSCQE Cadre and Basic Counter Terrorist Course (BCT) vide reference B. Thus the re-run SSCQE 2013 was considered as a fresh attempt for the officers concerned” 3 “The result of the re-run examination was therefore released vide reference D for dissemination to formation and Units as First attempt for the candidates” In paragraph 3 of the exhibit i.e MKU 4, the relevant portion has the following sentences “… I am directed to convey the COAS directive that the re-run SSCQE 2013 be counted as 2nd, third and concessional attempts as applicable for the above named officers and 216 others who sat for the examination ………” In the said exhibit as a follow up to this position the defendant listed the name of the claimant against the category of those who sat for the re-run as a third attempt. The claimant is listed as No 190 in the serial numbering. Furthermore, in a letter dated the 23rd September 2013 addressed to the claimant by the defendant which is Exhibit MKU 5, the defendant referred to the re-run examination result as a first attempt; while the letter 14th March 2014 referred to the re-run April 2013 SSCQE examination held before the re-run as a 2ND ATTEMPT. THIS IS REFLECTED IN Exhibit MKU 6. Moreover Exhibit MKU7 which is a letter of 17th March 2014 referred to the July 2013 re-run examination as a 3rd attempt. The confusion arises by the letters of the defendants referring earlier on to the re-run promotion examination of SSCQE July 22-26 of 2013 as a re-run examination cumulating in a first attempt have been corrected by the letter of 17th March 2014 which referred to the re-run as a third attempt. In a case of this nature, which is an employment or engagement regulated by law, case law authorities are clear that as part of the conditions an employee need to prove when complaining about an unlawful disengagement, who can appoint him, and who can remove him and that his appointment can only be determined by a person or authority other than the defendant. The claimant must prove all these; In other words, an employee who seeks a declaration that his retirement was unlawful or wrongful must prove the following material facts 1. That he is an employee of the defendant 2. The terms and conditions of his employment or engagement 3. The way and manner and by whom he can be removed 4. The way and manner the terms and conditions of his employment were breached by his employer See the cases of Adams Vs. LSDPC 2000 5 NWLR Pt. 656 290 CA; Emokpae Vs. Uniben 2002 17 NWLR Pt. 795 CA; Ujam Vs. IMT 2007 2 NWLR Pt. 1019 470 CA; NRW Ind. Ltd Vs. Akingbulugbe 2011 NWLR (Pt. 1257) 131 CA. There is no doubt in this case that the claimant is in the employment of the Nigerian Army. Parties are ad idem on this fact; On the issue of the terms and condition of employment and how it has been breach, the only available document governing the relationship of the parties in this case is Armed Forces of Nigeria Harmonised Terms and Conditions of Service for Officers 2012. In the certification column, it is stated as follows; “The contents are to be strictly observed on all occasions and interpreted reasonably and intelligently with due regard to the interest of the services, bearing in mind that no attempt has been made to provide for unnecessary and self-evident exceptions” In the general preface of the document in question, the HTACOS 2012 is to supercede all service orders, Admin instructions, Gazette notices and Government Circulars. This means that the intent and motive of the drafters of the document wants its content to be binding, superior and sacrosanct in the relationship between the Armed Forces and its engaged personnel. In chapter 9 of the document, it is stated in paragraph 09:02 (c)(2) as follows: An officer may be compulsorily retired from service by the Army Council/Navy Board/Air Force Council for any of the following specific reasons: (2) Failed promotion examination or CAPEX 3 times” The contention of the claimant counsel is that the re-run is a repeat and should not be counted as a fresh attempt for the purpose of computation of the number of attempt for the claimant. In a clear and unambiguous situation, interpretation of the laws and legal instruments should not create any difficulty. The literal rule as a cannon of interpretation becomes inevitable in such circumstances; The re-run have been clarified by the defendant in Exhibits before me as a fresh attempt. The re-run also was clearly stated as an examination with the same syllabus as the previous. Wherever it was stated as the re-run being a first attempt have been altered to be a third attempt MKU 7: In any case Exhibit MKU 5 cannot alter, obliterate or amend the Terms and Condition of Service; In fact the terms and conditions came into existence on the 10th of July 2012 before the re-run examination was conducted on 22-26 July 2013. Invariably, this means, the claimant was in the know as to the existence of this HATCOS 2012 before he attempted the SSCQE 2013. On the strength of the provision of chapter 9 clause 09- 02 (c) (2) of the HATCOS 2012 of the officers of the Armed Forces of Nigeria, I hold that the SSCQE 2013 held between 22-26 July 2013 of which the claimant participated was his third and final attempt and as such he is supposed to disengage as a result of his failure in the said examination; The lone issue submitted for determination by the claimant counsel is hereby resolved in the affirmative. Consequently all the reliefs of the claimant fails and are accordingly dismissed. I make no order as to cost ----------------------------- Hon. Justice P.O Lifu JP. Judge