IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
25TH DAY OF MARCH 2021 NICN/ABJ/326/2016
LT. COL. ABUBAKAR S. MOHAMMED (RTD) ……………………………………….… CLAIMANT
1. NIGERIAN ARMY
2. NIGERIAN ARMY COUNCIL
3. CHIEF OF ARMY STAFF
4. ARMED FORCES COUNCIL
5. CHIEF OF DEFENCE COUNCIL DEFENDANTS
6. ATTORNEY-GENERAL OF FEDERATION
7. BRIG-GEN MANSUR MOHAMMED DAN-ALLI
8. MAJ-GEN MOHAMMED HONG GARUBA
1. Following my posting from the Abuja Division to Calabar Judicial Division of the court, the judgment in this case could not be delivered within the 90 days stipulated in section 294(1) of the Constitution of the Federal Republic Of Nigeria, 1999, as amended. Therefore, I shall in conformity with the provision section 294(6) of the Constitution of the Federal Republic of Nigeria as amended send a report to the Honourable The Chief Justice of Nigeria, and Chairman of the National Judicial Council of the development.
2. The claimant vide a writ of summon dated 7th day of September, 2016, filed this suit at the registry of this Honorable Court seeking for an order setting aside his constructive dismissal, reinstatement into his statutorily protected employment, an ancillary/consequential protective order against future victimization and for exemplary damages having regard to the particularly egregious conduct of the Defendants before commencement of action and during the pendency of action on punitive basis.
3. In the statement of facts dated August 28, 2016 the Claimant has set forth allegations against the Defendants touching on (1) abuse of public office, (2) unfair dismissal from a statutory protected employment, (3) breaches of constitutional and due process rights and protections and (4) for exemplary damages.
4. It is to be noted that the defendants despite being served and represented by counsel at the trial failed or neglected to file defence to the claimant’s action. Rather they rested their case on that of the clamant. They however filed preliminary objection which was heard by the court and dismissed for lacking in merit.
5. In proof of his claim, on 12th March 2020, the claimant testified as CW1 and after identifying his witness statement of oath adopted same as his evidence in this case. The claimant also tendered four documents which were admitted photocopy of Letter of the Notification of commission dated 16th September 2000, B: photocopy of Letter of Appointment by a Presidential Commission dated 16th September, 2000, C: Letter of compulsory retirement dated 9th June 2016, D: Harmonized Terms and Conditions of Service for Officers 2012 (Revised).
6. The Claimant testified in proof of his case as CW1. After identifying his witness statement on oath CW1 adopted same as his evidence in this case. He also informed the court that he was commissioned as an officer of the Nigerian Army in September 2000 as a Second Lieutenant and that he was already a Lieutenant Colonel when he was issued with a letter of compulsory retirement on June 9, 2016. Exhibits A, B and C.
7. The Claimant also testified that his appointment vide exhibits A and B, is governed by exhibit D Harmonize Terms and Conditions of Service for Senior Officers 2012, (Revised) and the Armed Forces Act. CW1, also gave evidence that he had an unblemished service record and that he had brilliant prospects to get to the top rank of a career that could potentially last 35 years in the Nigerian Army. CW1 gave evidence that year after year he obtained superior appraisals of his service and does not have any record of any disciplinary action against him whatsoever. CW1 also gave evidence that he never held any procurement appointment in the period and that he had no involvement with procurement. He further stated that he was never investigated or indicted by the Panel investigating corruption in arms purchases which was inaugurated by President Buhari on August 30, 2015. He was also never indicted by the Board of Inquiry into election matters which was inaugurated by Chief of Army Staff on October 20, 2015. He was also stated that Between August 30, 2015 and June 9, 2016 on the one hand and between October 20, 2015 and June 9, 2016 on the other hand, he continued to do his work with the Nigerian Army and was never indicted or charged before any panel. As a senior officer any offence against him is required to be charged before a court martial and that this was never done; he was never given an opportunity to defend himself against any charge or complaint or allegation before any board, or before a court martial or before any tribunal of competent authority; that no verdict was returned against him whatsoever and that the Army Council did not have an opportunity to confirm any verdict against him and as such the Defendants were in breach of the law to fabricate a punishment against him.
8. At the conclusion of evidence in Chief, CW1 by counsel for the 1st to 5th defendants.
THE SUBMISSION OF THE CLAIMANT:
9. In the final written address, the claimant formulated twin issues for determination. They are:-
1. Whether the punishment’ meted out to claimant in exhibit C is in line with disciplinary procedures established under section 36 of the Constitution, section 183 of the Armed Forces Act and the terms and conditions of service in EXHIBIT CW-D.
2. Whether the Claimant is entitled to the reliefs sought especially in the present circumstances where the Defendants are not resisting any of the allegation pleaded in the Statement of Facts arid are deemed to have admitted all the evidence on the record.
10. In arguing issue one, Abdul Mohammed, Esq; counsel for the claimant submitted that the claimant has properly constituted a case of unlawful dismissal so as to require the Defendants to have the duty to now have to prove that their action was not unlawful. The Claimant refer to the case In Offorishe V Nigerian Gas Company Limited (2018) 2 NWLR (Part 1602) 36 at 61, and submitted that the claimant by exhibits A, B, C and D has put before the court, the terms and conditions of the contract of employment and the manner in which the terms and conditions of the engagement was breached by Defendants.
11. Secondly, the Claimant submitted that an employment is said to have statutory flavor if the employment is directly governed or regulated by statute or a section of a statute delegate’s power to an authority or body to make regulation or conditions of service as the case may be. The Claimant refers to the case of Ujam V. IMT (2017) 2 NWLR (Part 1019) 470 at 492, paras B — C. The Claimant submitted in Relying on the pleadings, evidence contained in paragraphs 4, 5, 8, 14, 20, 21 of the statement of facts the claimant has proved that his employment enjoys statutory flavor in any case, the Defendants do not dispute this fact.
12. The Claimant submitted his third point by stating that the Defendants in this case gave a reason for compulsory retirement of the Claimant in exhibit C where it was stated in paragraph (1) Thereof that Claimant was compulsorily retired pursuant to paragraph 09.0 2C (4) of the Harmonized Terms and Conditions of Services for officers (HTACOS). HTACOS itself has been proved in this case and forms a part of the case record as EXHIBITCW-D. Paragraph 09.2c (4) of EXHIBIT CW-D (HTACOS) provides for compulsory retirement as a base for 'Disciplinary grounds- serious offences.'
13. The Claimant submitted their fourth point of submission and urges the court to hold that the punishment meted out to claimant in exhibit C was NOT done in accordance with disciplinary procedures established under the Constitution, the Armed Forces Act and the regulation thereunder.
14. The Claimant submitted by Relying on paragraph 15 of the Witness Statement and the other evidentiary materials and analysis as set forth in paragraphs 3, 5, 8, 10, 12, 13, 16, 17, 18, 19, 21, 23 and 25 of the final written address, that: he was never court martialed for any offense, no court martial verdict against the Claimant was ever confirmed by the Army Council. The Defendants did not bring ANY evidence before this court to show that the claimant was ever given even a warning, oral or written or otherwise. The Claimant never had a disciplinary complaint made against him, that he was never charged for any offence and that he was never given any chance to defend himself before any court or tribunal of competent jurisdiction before he was punished by the purported compulsory retirement. There were no factual grounds in existence for punishing the Claimant. Defendants just simply victimized the Claimant. The defendants failed to comply with the relevant law that is to say section 183 of the armed Forces Act in respect of the purported disciplinary action against Claimant. The defendants failed to comply with the procedures set by section 36 of the constitution.
15. It is submitted that due process procedures were not adopted and complied with to terminate the employment relationship. The defendants failed the legal duty to (1) specify the details of the serious offences, and (2) justify the allegation on a basis of proof beyond reasonable doubt in the circumstances in this court. The defendants also failed to comply with the steps supposed to be taken in as set out by Section 183 of the Armed Forces Act.
16. The Claimant Urges the court to hold that exhibit C was not done in compliance with section 183 of the Armed Forces Act; further, that the Claimant was not given fair hearing (no hearing at all was given) leading to the decision or punishment in exhibit C .
17. It is submitted that another significant due process failure is that it is apparent that the Army Council did not consider any legal verdict made against the Claimant before making a decision. In other words, the Army Council acted (illegally) as the accuser, the investigator, the court, the appellate review panel and the executioner in the case of the Claimant.
18. It is submitted that after punishing Claimant for no just cause the Defendants also stultified the Claimant's right of access to seek administrative remedies before the President.
19. It is submitted that the Claimant is entitled to further ancillary and consequential protections from victimization in the circumstances in accordance with the provision of paragraph 09.07 of EXHIBIT D: it is argued that it is within the powers of this court to utilize the legal principle of ubi jus ibi remedium to grant the relief from future victimization of claimant just because he has now sought to ventilate his grievance in this court. The Claimant urges the court to hold that the Claimant is entitled to the grant of a protective order to prevent any victimization solely on the basis that he brought a case to court and that he was successful at ventilating his legitimate claims before a court of competent jurisdiction.
20. It is also contended that the Claimant is entitled to exemplary damages in addition to an order of reinstatement. In support of this contention, reliance was placed on the cases of Odibi & Anor v. Mueme (1999) LPELR-2216 SC per Ogwegbu JSC at page 24, para G; and Odiba v. Agege (1998) LPELR-2215 SC, per Igu JSC at page 25, paras B. the clamant also rely specifically on the case of Allied Bank v. Akueze (1997) LPELR-429 (SC) which sets out the three possible grounds or circumstances for grant or award of exemplary damages as follows:
I. Where evidence shows oppressive, arbitrary or unconstitutional action by the servants of the government.
II. Where defendants conduct has been designed to make profit for himself.
III. Where exemplary damages are expressly authorized by statute.
21. The Claimant submitted by referring to CWl’s evidence which at paragraph 2, 3, 4, 5, 6, 7, 8, 10, 11, 13 , 14, 15 , 16 , 17 , 20, 21, 22 , 28 and 29 of his witness statement which is supported by exhibit C to the effect that the Defendants had objective knowledge that there were no factual basis to punish Claimant but the Defendants have refused to retrace their steps and have persisted in victimizing the Claimant including by stultifying the Claimant's right of administrative appeal.
22. The Claimant in Relying on the statements set forth in paragraphs 43 and 44 of this written address, urged the court to hold that exemplary damages could and should be obtained against the Defendants because the actions of the Defendants has been wanton, oppressive and malevolent in a manner that makes exemplary damages recoverable as a punitive measure and an example or correction to similarly situated public officers and for overall public good, more so since the malevolent and illegal actions of the Defendants unless purged will continue to impact negatively on the management, organization and administrative cohesiveness of such a significant national institution as the Nigerian army.
23. The Claimant submits further that, having regard to the state of pleading, the evidence and the conduct at trial of this case, the actions of the Defendants in subjecting the Claimant to compulsory retirement is clearly unlawful and 0nce a statute like section 183 of the Armed Forces Act provides a particular mode of doing anything in relation to any steps to be taken to discipline the Claimant only that method and no other must be adopted. See AG Anambra State v. Okeke (2002) 12 NWLR (Part 782) 575.
24. The Claimant submits that under sections 129 - 142 of the Armed Forces Act and also under sections 140, 141 and 152 (b) of the Armed Forces Act, a Lieutenant Colonel cannot be tried summarily. He must be tried by court martial, the court martial must ensure fair hearing and give verdict which is the only instrument that the Army Council may confirm or not confirm, but in the case before this court, there is no evidence that the Army Council (in council) had a verdict to consider in the case of the Claimant.
25. The Claimant submits that It is a gross violation of the law for the Army Council to reach a decision to punish the Claimant in the absence of a verdict of a court martial See Zakari v. Nigerian Army & Anor (2015) LPELR-24721 SC 24-35; Okoro v. Nigeria Army Council (2000) 2 NWLR (Part 647) 77, and that the action of the Army Council in this case breached all known principles fundamental to all courts or panel deciding the rights of citizens. The principle is breached where as in the present case parties are not afforded a fair hearing or any hearing at all. See Ejeka v State (2003) LPELR-1061 SC 13.
26. The Claimant concluded the above submission by referring to the following decisions of the National Industrial Court as persuasive authorities:
1. Decision in case number Major General Ijioma V. Nigerian Army & Others, dated June 3, 2019. NICN/ABJ/262/2016 - (unreported).
2. Decision in case number NICN/ABJ/316/2017 Col Danladi Ribah Hassan v. Nigerian Army & Others (unreported) dated January 8, 2019.
27. The Claimant submitted in the closing, and urges the court to give judgment for the Claimant for the following reasons:
a. The procedure that could validly lead to the compulsory retirement of a Lieutenant Colonel on disciplinary grounds serious offences as prescribed by the Armed Forces Act was not followed.
b. A careful perusal of EXHIBITS CW-A, CW-B and CW-D show on their faces that the Claimant's Commission was gazetted in the federal Government Gazette, what's more, EXHIBIT CWA and EXHIBIT CW-B shows clearly that the employment/ appointment/ commission is governed by the Armed Forces Act.
c. Following a long and established line of judicial authorities as set forth in the case of University of Ilorin v. Abe (2003) FWLR Part 164 267 at 278, the position of the law which is applicable to this case is that in other to discipline a person in an employment with statutory flavor the procedure laid down in the relevant statute must be compiled with strictly and that has not happened from the side of the Defendants in this case .
d. Section 183 of the Armed Forces Act provided for disciplinary procedures which includes charge, arraignment and court martial, these procedures were not followed by the defendants.
e. Defendants have failed to satisfy the court of the reason for punishment and for noncompliance of the relevant statutory procedures to the standard in the case of PHMB v Ejitagha (2000) 1 NWLR (Part 677) 154 at 160.
f. Claimant was also not allowed to defend himself within the requirement of section 36 of the Constitution.
g. All the procedure infractions by the Defendants render the punishment of compulsory retirement and EXHIBIT CW-C null and void.
h. Claimant is actually a victim of public officers who have also abused their office and the circumstances of this case falls within the category of oppressive arbitrary and unconstitutional action by Government officials.
i. Claimant has proved his case and Defendants have failed to justify the reason for punishment as demonstrated by them, and they have also breached constitutional and statutory fair hearing provisions.
28. Based on the foregoing legal submissions, Claimant urges the court to resolve all the issues presented in this case in favor of the grant of the reliefs sought by the Claimant on the complaint.
THE SUBMISSION OF THE DEFENDANT:
29. The 1st – 5th, 7th and 8th defendants (hereinafter referred to as the defendants) final written address raised some Preliminary points of law to be resolved by the Honorable Court before proceeding with the merit of this matter.
30. Firstly, the defendants urged the court to strike out the names of the 7th and 8th defendants for reason that;
I. There is nowhere in either the claimant’s pleading or evidence where the claimant made out and/or established any complaint or grouse against the 7th and 8th defendants.
II. This suit can reasonably and effectively be dispensed with, without the presence or input of the 7th and 8th defendants as it is the present position.
31. The defendants submitted that the law is settled that only necessary or desirable parties can be sued or joined in an existing action. According to counsel this point, was well driven home by this Honorable Court in the case of Inyang & Anor vs. Nigeria Security Printing and Minting Plc & 2 Ors (Unreported suit) no: NICN/ABJ/92/2012 delivered on 11th March, 2013) where this Court held that:
“The fact that a body is a shareholder in a company does not make it a necessary party to be sued where the company itself is a party.”
32. The defendants submitted that the above decision is in all fours with the position in the present case, the fact that the 7th and 8th defendants were the Minister of Defense and Military Secretary of the Nigerian Army respectively does not make them a necessary party to be sued where the 1st defendant in itself is a party. This is especially so, where there is nothing to show that the 7th and 8th defendants were in anyway directly involved in the facts leading to the filing of this complaint by the claimant.
33. The defendants submitted that where a party acted in an official capacity in an issue upon which a complaint is filed, such a party cannot be sued in personal capacity. The defendants submitted that in the case of Nweze vs. Ebonyi State University & Ors (Unreported suit no: NICN/EN/63/2012 delivered on 22nd November, 2012), it was held that the Vice Chancellor and the Registrar who discharged their functions, which though statutory, but in relation to the determination of the employment of the claimant cannot be held personally responsible or liable.
34. The Defendants, urges this Honorable Court to strike out the names of the 7th and 8th defendants from the suit. And further refers to the cases of Ataguba & Co. vs. Gura Nig Ltd (2005) 8 NWLR (Pt.927) 429 and Mr. Dominic Eze vs. City Central Group of Companies Ltd & Anor (Unreported suit no: NICN/ABJ/371/2014 delivered on 14th October, 2014).
35. The defendants in respect of the second preliminary point of law urged the court to strike out the names of 2nd, 4th and 5th defendants on the ground that they are not juristic persons capable of suing or being sued. It is the submission of counsel that though 2nd, 4th and 5th defendants are creation of the law, but the law that created them did not confer on them with toga of juristic personality that can enable them to sue and be sued. In support of this contention counsel relied on the case of John Holt Ltd vs. Leonard Ezeafulukwe (1990) 2 NWLR (pt 133) 520. In Bank of Baroda vs Iyalabani Co Ltd (2002) 7 SC (pt11) 21 at 31, where the Supreme Court held that competency to sue and be sued is an important factor in deciding the competence of the action itself, since it is essential that persons who are made parties to an action must be legal persons.
36. The defendants’ counsel submitted on behalf of the defendants that in determining the competence of a statutory body to sue and be sued, it is necessary to look at the instrument by which the body is established. To buttress the contention reference was made to the case of Thomas vs. Local Government Service Board (1965) NWLR 310. This is because it is the instrument that defines the body’s power, functions, rights and duties and consequently whether, the body can sue and be sued in relation to the exercise of the powers, functions, rights and duties.
37. The defendants also submitted that the 2nd, 4th and 5th defendants are created by the Armed Forces Act, Cap A20 Laws of Federation of Nigeria (LFN), 2004 and nothing in the act suggests or seems to suggests that the said defendants in the exercise of their powers, functions, rights and duties can sue and be sued in relation to exercise of such powers, functions, rights and duties. The defendants in the light of the foregoing urged the court to strike out the names of 2nd, 4th and 5th defendant from the suit.
38. The defendants in the third leg of their submission on points of law impugned the admissibility of Exhibits A, B, C & D, which counsel contended are photocopied public documents tendered by the claimant. Counsel submitted that during the proceedings of 12th March, 2020, the defendants did raise an objection to the admissibility of the photocopies of the documents since same are all public documents which can only be admitted in accordance with the provisions of sections 90(1)(c) of the Evidence Act, 2011. The defendants insisted that exhibits A, B, C and D are all inadmissible and urged the court to reject them. The defendants’ submission is predicated on the ground that the documents are public documents under section 102 (a) and (b) of the Evidence Act, 2011 and by Section 88 of the Evidence Act, 2011, documents shall be proved by primary evidence except in the case mentioned in section 89 (e) of the Evidence Act.
39. The defendants submitted that a combined reading of section 102 (a) and (b), section 88, 89(e) and 90(1) (c) of the Evidence Act, 2011 will reveal the following in relation to this proceeding:
I. That document shall only be proved by primary evidence except in the cases mentioned in the Act.
II. That exhibit A, B, C and D tendered by the claimant are public documents within the meaning of section 102 (a) and (b) of the Evidence Act.
III. That when the original is a public document within the meaning of section 102 of the Act, the only way it can be admitted is through a Certified Copy in accordance with section 90(1)(c) of the Act.
40. The defendants further submitted that the only mode of admissibility of the secondary evidence of a public document is by tendering the Certified Copy of the document. The defendants humbly refers to the cases of Ogbuanyanya vs. Okudo (1979) 6-9 SC 32, Ogunleye vs. Aina (2011) 3 NWLR (pt 1235) 479, Araka vs. Egbue (2003) 17 NWLR (pt 848) 1 and Iteogu vs. L.P.D.C (2009) 17 NWLR (pt 1171) 614. In Ogunleye vs. Aina, the Court of Appeal per Nweze JCA (as he then was) at page 585 – 587 has this to say:
“By virtue of section 97(2) (c) of the Evidence Act, the secondary evidence of a public document admissible in evidence is a certified copy of the document, but no other kind of secondary evidence.”
His Lordship held further that:
“The only categories of public documents that are admissible in evidence are either the original documents themselves, and in the absence of such original copies, their certified copies and no other.”
41. The defendants urged the court to on the authority cited to reject exhibits A, B, C and D tendered by the claimant and to resolve all the three preliminary issues of law raised in favor of the defendants.
42. In the light of the preliminary issues, the defendant formulated a sole issue for resolution of the substantive suit. to wit:-
“Whether having regards to the materials placed before the Court, the facts and circumstance of this case, the claimant is entitled to the reliefs sought?”
43. The defendants submitted that before proceeding with the argument on this issue, it is important to note that the claimant was not dismissed by the Nigerian Army rather he was compulsorily retired with all the necessary benefits accruing to an officer of Lieutenant Colonel. The claimant was retired in accordance with the provisions of Harmonized Terms and Conditions of Services for Officers 2012 (Revised), the claimant did not challenged the constitutionality or otherwise of the Harmonized Terms and Conditions of Services for Officers 2012 (Revised). Moreover, the claimant did not in any manner in his claim and pleading before this Court challenged the powers of the Nigerian Army to compulsorily retire him from service, he also did not alleged that his retirement was not done in accordance with Harmonized Terms and Conditions of Services for Officers 2012 (Revised).
44. The defendants submits that the claimant was compulsorily retired by the Army Council in accordance with the paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for officers 2012 (Revised). The paragraph provides as follows:
“Compulsory retirement or resignation may be effective for any of the following reason(s):
a. An officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds.
b. An officer may be compulsorily retired from service by the Army Council/Navy Board/Air Force Council for any of the following specific reasons:
c. On disciplinary grounds i.e. serious offence(s).
45. The defendants submitted that the Harmonized Terms and Conditions of Services for Officers 2012 (Revised) under which the claimant’s served in the Nigeria Army did not provide that an officer who is to be retired under any of the provisions of Chapter 9 of the Harmonized Terms and Conditions of Services for Officers 2012 (Revised) must firstly be convicted before the General Court Martial or any other quasi-judicial body before the officer can be retired.
46. The defendants submit that, the implication of this is that, the Nigerian Army, Navy or Air Force does not need to firstly convict/indict an officer before proceeding with the compulsory retirement of such officer. Once in the opinion of the Army Council, Navy Board or the Air Force Council (as the case may be) it is established that an officer whose service is govern by the Harmonized Terms and Conditions has been involved in an act considered to be a serious offence, the Council/Board may call upon the officer to retire or resigned from service.
REPLY ON POINTS OF LAW BY THE CLAIMANT
47. The Claimant respectfully submits the following four-point rebuttal to the various arguments canvassed by the counsel on the 1 - 5th, 7& 8 Defendants’ Written Address dated June 29, 2020 and our four-point rebuttal arguments are sets forth below in paragraphs 2, 3, 4 and 5-7 of this Reply on points of Law.
Rebuttal to preliminary issue number 1
48. The Claimant submits that preliminary issue number 1 raised by the counsel to the Defendants at paragraph 2.01, 2.02, 2.03, 2.04 and 2.05 must fail because taken together, the contentions canvassed suffer the following failure of analysis of the law and/or defects:
49. Issues connected to joinder or non-joinder of parties are not threshold issues of Jurisdiction.
50. It is late in the day to assert that the case can be fought without the 7th and 8th Defendants because the case has been concluded with the full participation of the 7th and 8th Defendants on record.
51. 7th and 8th Defendants have not filed any interlocutory application at all before the court prior to raising the issue of joinder and since the issue is not one of Jurisdiction and Competence this court lacks thus Jurisdiction to consider this specified issue in the circumstance.
52. The case of Inyang & Anor v, Nigeria Security & Minting Plc, case number NICN/ABJ/92/2012 referred by the Defendants has no relevance to this Case. That, properly construed, the decision in that case is based on the basic jurisprudence of Company Law as set forth in the famous case of Salomon V. Salomon. The issue of separate identity of the Shareholders vis-a-vis an incorporated Company has no relevance for cases connected with whether a public officer is an appropriate Defendant in a case connected with public service employment.
53. The Claimant submits that If the Counsel intended to bring this point it was his duty to file a motion to support it with an affidavit in the usual way and which he has neglected to do as the record of the case shows
54. The Defendant submitted that while Nweze vs. Ebonyi State University &_ Ors in case number NICN/EN/ 63/2012 may be good authority on the issue whether a Registrar of a University may be personally liable in an employment case however this case does not afford reasonable authority for the proposition that touches on who is a necessary or desirable party.
55. The Claimant submitted that the defense’s Counsel has attempted to give evidence before this court via a written brief but this is not permissible because the Claimant has brought about now a challenged to respond to these facts and to bring necessary contrary facts, which must be afforded an opportunity to do in the interest of fair hearing and more also If the Defendants had filed a motion, Claimant would have had the opportunity to meet their facts by way of a counter-affidavit. This ambush practiced by the Defendants has robbed the claimant, and indeed this court of the ability to consider appropriate facts on the point raised by Defendant from both Sides.
56. Rebuttal to preliminary issue number 2
57. The Claimant alleged that the submission of the Defendants in paragraph 2.07 of the Written address to the effect that 2nd, 4th and 5th of the Defendants are the creation of the Armed Forces Act which effectively knocks the bottom out of the contention contained in the preliminary issue number 2 as set forth by the Defendants, to the effect that the 2nd, 4th and 5th Defendants are not juristic persons.
58. The Claimant submitted that they have canvassed the point that both the preliminary issue number l and preliminary issue number 2 are improper for the Court to even consider at this stage, and this in addition to Canvassing Substantive arguments as to why the said issues as urged by the Defendants Cannot persuade the court. However, as to the Defendants preliminary point number 3 (Which said point 3 is agreed is one that is proper for the court to consider) counsel urged the court to refuse the invitation of the Defendant in respect to the preliminary point number 3 for the following reasons:
59. Record of court will show that counsel to the Defendants reserved an objection to Exhibit A and B and did not reserve any objection to Exhibit C and D. in otherwords it is not appropriate to raise objection to admissibility of Exhibits C and D at this point.
60. Exhibits C and D are before the court and the court's examination will reveal that those exhibits are both originals. The exhibits are not photocopies at all as alleged by the Defendants in their paragraph 2.08.
61. The objection of the Defendants proceeded on the (inaccurate) footing or basis that Exhibits A, B, C and D are public documents within the meaning of the Evidence Act. None of the exhibits before this Court in this case are public documents within the meaning of the provisions of the Evidence Act.
62. Exhibits A and B are the letters of appointment of the Claimant. The letters were addressed to the Claimant. It will be curious if the proposition of the Defendant was accepted by this court that an employee's addressed to the employee constitutes a public proposition Will lead to very absurd Consequences in this court for it would mean that in and for any employment with statutory flavor, an employee Will be unable to prove his employment by the presentation of his employment letter.
63. Exhibits A and B before this court as the record will show are photocopies of private documents. Namely the employment letters of the claimant and the Defendants have not denied that claimant laid necessary foundation before Exhibition A and B were tendered.
64. The cases of Ogbuanyanya vs Okudo; Ogunleye v. Aina and 1roegbu vs. LPDC which were Canvassed by the Defendants are not applicable to the situation of Exhibits A and B in that, those exhibits are the employment letters addressed to the Claimant and not public documents Within the meaning and purport of the Cited laws; and with respect to Exhibit and DL reserved against those exhibits at trial, (1) Exhibit D termination of employment the Claimant, (2) Exhibit C is the terms because (3) no objection was is the letter of addressed to and conditions of Employment of the Claimant which was published by the Defendants and (4) Exhibits C and D are originals before the court.
65. It is submitted that the defendants submits solely on the basis that the Counsel to the Defendant owes a duty of candor which stipulates that every Counsel before a court of law must not deliberately mischaracterize the record of the court, and on this basis only, we must point out that the characterizations of the Claimant's case before this court as Contained at paragraphs 1.02 and 1.03 of the Defendants Written address are wrong, misleading and contrary to the positions that the Claimant has advanced before this court and also Contrary to the evidence before this court.
66. Furthermore, the Claimant submits that in paragraph 1.04 of the defendants’ Written Address, it was stated by counsel on behalf of the defendants that the defendants did not file a statement of Defense and so therefore the Defendants rest on the case of the Claimant. This statement on the part of the defendants is sufficient reason for the court to give reliefs for the Claimant for all of his claims before this court as claimed.
67. The Claimant submits that the contentions advanced at paragraphs 3. 02, 3.03, 3.04, and 3.06 of the defendants' written Address suffer from the following errors of analysis of facts in the record or this case and also the application of the facts to relevant Case law authorities and applicable statutes:
68. Failure of the defendants to acknowledge that under the jurisprudence of this Court a Compulsory retirement of a public officer before expiration or his term and for disciplinary grounds is a serious offences tantamount to a dismissal which can only be cured by re-statement.
69. Failure of the defendants to acknowledge that the Harmonized Terms and Conditions of Service (HTACOS) Was made pursuant to the Armed Forces Act and must be read in accordance with the Armed Forces Act such that the procedures provided by the Armed Forces Act for conviction etc. are applicable in the present case.
70. Failure of the defendants to acknowledge that in an employment with statutory flavor, as the present case, the procedures and any breach of fair hearing vitiates the decision for dismissal as established by the universal jurisprudence of this court in the various cases decided in Nigeria.
71. Failure of defendants to appreciate that the case for the Claimant is not that the HTACOS is or was unconstitutional at all; and
72. Failure of the Defendants to acknowledge that every action of the defendants under HTACOS must be subject to the Armed Forces Act as well as to the provisions of Chapter IV of the Constitution.
73. The Claimant concludes by urging the court to consider their arguments and grant the claim of the claimant.
74. I have carefully considered the processes filed in this suit. From the reliefs being sought in paragraph 75 of the statement of fact, the claimant is contesting the validity of his compulsory retirement from the Nigerian Army.
75. Consequently, the claimant sought for three declaratory reliefs, order setting aside the compulsory retirement and immediate reinstatement back to his statutory protected employment or service of the Nigerian Army, with effect from the date of compulsory retirement, 9/6/2016.
76. There is also a claim for an order that the defendants jointly and severally should not harass or subject claimant to any form of arbitrariness on account of the bringing claim before any court or tribunal or body of competent jurisdiction in pursuance of the legal right conferred on claimant by paragraph 09.07 of the Harmonized Terms & Conditions of Service for officers 2012 (revised). There is also the claim for compensatory, aggravated and exemplary damages in the sum of N5,000,000,000,.00 (Five Billion Naira).
77. The crux of the fact that led to filing of this suit are that the claimant was enlisted into the Nigerian Army in 2000, as 2/Lt, and rose to the rank of Lt. Colonel, before he was compulsorily retired from the Nigerian Army vide letter dated 9/6/2016, on disciplinary grounds i.s serious offences, 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 exhibits CWA, CWB, CWC and CWD.
78. According to the claimant the reason given for his compulsory retirement was unfounded and in abuse of office, as the claimant has never at any time since the date of his commission as an officer in the Nigerian Army 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 that 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 constructive dismissal.
79. The defendants despite being served with the originating court processes commencing this suit chose not to file defence to the claimant’s action. Rather the 1st - 5th and 7th – 8th defendants raised preliminary issues in their final written address before the court.
80. I shall observe that the defendants in their final written address seem to be giving evidence. This is in contravention of rules of pleading. The law has been settled that counsel in addressing the court shall not be allowed to turn to witness giving evidence. This is because the case of the parties is erected by the pleadings and parties do not have the freedom to move out of the pleadings in search of a better case. Where evidence is adduced without pleading it goes to no issue.
81. It is trite law that address of counsel is designed to assist the court. Address of counsel must be based on pleaded facts. Therefore, where facts are not duly pleaded, counsel cannot introduce them in the course of address because facts belong to the litigant. What belongs to counsel is the law. Litigation is made up of a combination of facts and the law. The litigant supplies the facts and counsel supplies the law. See Evidence that is at variance with pleadings or evidence that is not supported by pleadings goes to no issue. See Orizu v. Anyegbunam (1978) 5 SC 21; Atane v. Amu (1974) 10 SC 237; Adesanya v. Otuewu (1993) 1 ;
82. The law has been settled that address of counsel, no matter how brilliant, cannot amount to evidence. In this wise the submission of counsel for the defendants in the final written address to the effect that the claimant was not dismissed by the Nigerian Army rather he was compulsorily retired with all the necessary benefits accruing to an officer of Lieutenant Colonel. The claimant was retired in accordance with the provisions of Harmonized Terms and Conditions of Services for Officers 2012 (Revised), the claimant did not challenged the constitutionality or otherwise of the Harmonized Terms and Conditions of Services for Officers 2012 (Revised). Moreover, the claimant did not in any manner in his claim and pleading before this Court challenged the powers of the Nigerian Army to compulsorily retire him from service, he also did not alleged that his retirement was not done in accordance with Harmonized Terms and Conditions of Services for Officers 2012 (Revised). And that an officer may, at any time be removed from the service, be called upon to retire or resign his commission on disciplinary grounds, having not been pleaded cannot form part of the case of the defendants. In the circumstance, that fact cannot be established by address of counsel as the appellant sought to do by his address. See Like wise counsel for the defendants is not allowed to give evidence to the effect that the claimant did not deny receiving three months’ salary in lieu of terminal leave, received all entitlement to the effective date of retirement. That the claimant was only retired and not dismissed. The claimant is entitled to retain for life the rank of Lieutenant Colonel (the retirement rank).
83. The first preliminary issue is that the 7th and 8th defendants are seeking for striking out their names, on the grounds that nowhere either in pleading or evidence of the claimant that any complaint or grouse was established against the 7th and 8th defendants. The present suit can be tried and disposed of without the presence of the 7th and 8th defendants. According to counsel only necessary and desirable parties can be sued or joined in an existing action. It was also argued that where a party acted in official capacity he cannot be sued in his personal capacity. The claimant in reaction to the issue contended that the case relied by the defendants in canvassing their position is distinguishable from the facts of this case.
84. I shall state at this juncture that this court has vide ruling of 10th January 2019, dealt with the issues being raised by the defendants. The defendants are estopped from raising the issue at final address as this court has become functus officio in respect thereof having been determined. In the ruling of 10/1/2019, this court stated as follows:-
‘’ It is trite law that a claimant is free to join parties he has claim against. However, such a right can only be maintained if a cause of action has been disclosed against the parties in respect of the suit. I have read through the entire paragraphs of the statement of facts and the specific paragraphs referred to by the counsel for the claimant in respect of issue of abuse of office, it is clear to me that there are no sufficient factual situations therein to establish abuse of office against the 7th and 8th defendants. There are no facts disclosed in the statement of claim to show how the 7th and 8th defendant procured the compulsory retirement of the claimant from service of the military. There are also no facts pleaded to show how the 7th and 8th defendant breached the purported trust reposed on them by the president. There is also no facts pleaded showing involvement of the 7th and 8th defendants in the compulsory retirement of the claimant, nor were facts pleaded how the name of claimant was purportedly smuggled as alleged by the claimant. Even the purported newspaper publications which the claimant is relying to make a case against the 7th and 8th defendants were nowhere frontloaded as required by the rules of this court.
In the circumstances I am of the view that the claimant has woefully failed to disclose reasonable cause of action in respect of abuse of office to warrant his inclusion of 7th and 8th defendants as parties in this suit. This issue is resolved against the claimant. In the circumstances, the name of the 7th and 8th defendants are hereby struck out for mis-joinder.’’
85. It is clear from the ruling of 10/1/2019, that the names of the7th and 8th defendants have been struck out of this suit. This means that they are no longer parties before the court. Therefore the issue being canvassed is not competently before the court. the law has been settled that once a court has delivered its judgment or ruling, it becomes functus officio. Such a court cannot add to or subtract from the said judgment or ruling thereafter except to correct accidental slips or grammatical errors.
86. The principle of law dealing with this issue is the doctrine of Res judicata' otherwise fully known as 'res judicata proveritate accipitur' (is Latin for a thing adjudicated is received as the truth) means an issue that has been definitely settled by judicial decision or judgment, an affirmative defence barring the same parties from litigating the issue for a second time, or any other issue arising from the same transaction or series of transactions and that could have been but was not raised in the first instance.
87. The law is well settled that an issue that has been definitely settled by judicial decision or judgment is an affirmative defence barring the same parties from litigating it a second time on the same transaction or series of transactions and that could have been but was not raised in the first suit. It is instructive to emphasis that issue estoppel once established by the existence of a valid, competent and existing decision of Court or Tribunal, operates against all persons both parties and none parties to the litigation which gave rise to such decision. See IKOKU VS EKENKWU (1995) 7 NWLR (Pt.410) 637.
88. The second preliminary point of law by the defendants is that the 2nd, 3rd and 5th defendants are creation of the laws, but the law that created them did not confer on them with toga of juristic personality that can enable them to sue and be sued. Counsel contended that to determine legal personality the instrument will be looked at, because it is the instrument that defines the power, function rights and duties. The 2nd 4th and 5th defendants were established by the Armed Forces Act and nothing indicated they can sue or be sued. Counsel urged the court to strike their names out of this suit.
89. As a general rule, a party commencing an action and the person to be made defendant or to be sued in an action must be juristic persons or natural persons existing at the time the action was commenced, otherwise the action is incompetent and the court will lack jurisdiction to exercise its powers over a non-juristic or legal persons in law. Suing a non-juristic person renders whatever proceeding conducted thereon in respect of the non-juristic person a nullity. See LASTMA V ESEZEBO (2017) 5 NWLR (Pt.1559), FAWEHINMI V NBA (1985) NWLR (Pt.105).
90. It is to be noted that usually juristic personality is conferred by law on a party clothing the party with power to sue and be sued. However, the modern trend is that even where there is no express power provided, the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect, In Nkporinwi vs. Ejire (supra) the Court held that: "It is well settled principle of Law that the major jural entities or units to which the Law usually ascribes legal personality are: I. Human beings (Natural Persons). II. Companies incorporated under the various companies Acts. III. Corporation sole with perpetual succession. IV. Trade Unions V. Partnerships and VI. Friendly societies.
91. Undoubtedly, the list of the said categories of legal personae is not exhaustive. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that list if the justice of any given case so dictates. This was made clear in the case of Fawehinmi vs. NBA (Supra) Oputa JSC (of blessed memory) drew three distinctions from the celebrated case of Thomas vs. Local Government Service Board (Supra) like the Local Government was created by the Customary Law. Secondly, where the body or office is charged with the discharge of public functions and thirdly, where there is a nexus between the statutory functions and the injury complained of.
92. Looking at the entire facts and circumstances of this case, it will not make sense to hold that the 2nd, 3rd 4th and 5th defendants are not juristic persons as counsel for the defendant is canvassing.
93. For the 2nd to 5th defendant, the offices of the defendants were established by the Armed Forces Act, the law has conferred on them with certain responsibilities such as discipline of officers and day to day running of the Nigerian Army. The officers in the Nigeria Army are under the control and directive of Chief of Army Staff with the duties and responsibility of Chief of Army Staff as spelt out in the Army Act. From the foregoing, it will not be in doubt that in the exercise of the function of their offices the legal right of officers under them like the claimant in this case may in one way or the other be affected. In the circumstances I hold that 2nd to 5th defendants have juristic personality in the circumstance of this case. A careful perusal of section of Armed Forces Act will show that the 2nd 3rd, 4th and 5th defendants have specified roles, functions and duties assigned to them and in the exercise of these functions or duties other peoples right might be affected, therefore, it will not be right not to cloth them with power to sue and be sued. The issue is hereby resolved against the defendants in favour of the clamant.
94. The third preliminary issue on points of law is on admissibility of exhibits A, B, C, and D, which the counsel for the defendants contended are photocopies of public document tendered by the claimant. It is submitted these documents as photocopies can only be admitted in line with section 90(1) (c) of the Evidence Act. Counsel urged the court to reject them as they are public documents under section 102 (a) and (b) of the Evidence Act. Section 88 provides documents are proved by primary evidence except in the cases mentioned in section 89(e).
95. Counsel urged the court to reject these exhibits and if that is done the case of the claimant collapsed because the documents forming foundation upon which claimant’s case is built has no basis, you cannot put something on nothing and expect it to stand.
96. In reaction to third issue counsel for the claimant conceded that exhibits A and B are photocopies of private document and proper foundation was laid for their admissibility as secondary evidence which is allowed. For exhibits C and D, counsel contended that they are original.
97. From the record of proceeding of 12/3/2020, when the claimant testified, counsel for the defendants while cross examining the claimant had indicated that he reserved his objection to admissibility of exhibits A and B till the final address. Counsel also made it clear that he had no objection to the admissibility of exhibits C and D. Now, it is surprising the defendants are objecting to the admissibility of exhibits C and D, in view of the defendants’ earlier stand at the trial that he had no objection to exhibits C and D.
98. On the objection now being raised to the admissibility of exhibits A, B, C, and D, I have carefully perused the four exhibits being objected by the counsel for defendants. My finding is that as rightly submitted by counsel for the claimant exhibits C and D, are originals and not photocopies as being canvassed by the counsel for the defendants. Therefore, these exhibits have clearly fulfilled all the requirement of admissibility as provided in the provisions of sections 85, 86 and 88 of the Evidence Act. This means that the said exhibits have been properly admitted in evidence. The objection of the counsel for the defendant is misconceived and same is hereby dismissed.
99. On exhibits A and B, they are photocopies of letter of commission and certificate of enlistment into the Nigerian Army. Counsel for the defendants has argued that they are photocopies of public document, the court should discountenance them.
100. Going by the provisions of section 102 of the Evidence Act, exhibits A and B, are public documents. For the documents to be admissible in evidence they must be original copies or certified true copies as required by sections 89(1)(e) and 90(1)(c) of the Evidence Act. The law is trite a public document which is not certified is inadmissible in law. See Nwaogu V Atuma (2013) 11 NWLR (Pt.1364) 117V LPDC (2009) 17 NWLR (Pt.1171) 614.
101. However, exhibits A and B, being relevant to the proceedings before the court and the defendants having not disputed the authenticity of the said exhibits, I shall in line with the provisions of section 12(b) of the National Industrial Court Act 2006, retained the said exhibits as admitted in the interest of justice.
102. The purpose of tendering exhibits A and B is to establish that the claimant was enlisted into the Nigerian Army, thereby proving being employee of the 1st defendant. The law is now well settled that fact of employment can be established even without tendering letter of employment provided there are facts before the court establishing the employment relationship between the parties. See Nigeria Airways V Gbajumo (1992) 5 NWLR (Pt.244) 735. Thus in line with this decision, the objection of the defendants on exhibits A and B even if sustained or upheld cannot in anyway be adverse to the claimant’s case the reason being that there are averments in the pleading of the claimant establishing his employment into the Nigerian Army. Apart from the paragraphs of the pleading, exhibits C and D goes to support his claim of being employee of the defendants.
103. Having resolved the preliminary issues and main issue submitted by the defendants, I shall turn to consideration of the merit of the claimant’s case.
104. Before dealing with the two issues submitted by the claimant for determination. I wish to first and foremost state that this suit is being decided based on the evidence adduced by the claimant in support of his claim. This is because the defendants have failed, neglected or refused to file defence to the claimant’s action, despite having been served with the Originating processes commencing this suit. This means that the conducts of the defendants in refusing to file defence and call witness, means, they are deemed to have admitted the claim of the claimant.
105. However, I must quickly add that the law has been settled that failure to file defence will not result in automatic judgment in favour of the claimant. For the claimant to succeed is required to satisfy the court on minimal proof of entitlement to the reliefs being sought.
106. It is trite law that any party who claims and desires that judgment be given for him on his claim on any legal right or liability which is dependant on existing facts which he avers, must prove that those facts exist. Where he fails to do so then he will not be entitled to the relief sought. 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.
107. Now, the question to be answered is ‘has the claimant proved his case to warrant grant of the reliefs being 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:
108. 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 claimant is wrongful, and what is the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful?
109. 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 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.
110. There is no doubt that the claimant as a Military officer his employment is governed by the provisions of the Armed Forces Act and the Harmonized Terms and Conditions of Service for officers 2012 (Revised), exhibit D. it is not in dispute that the claimant is an employee of the defendants. The claimant has vide exhibit C, been compulsorily retired from service, which he is challenging by this action. The averments in paragraphs, 1, 30, 31, 32, 33, 35, 36, 37, 38, 44 49, 59 and 60 of the statement of facts and the corresponding evidence adduced in the witness statement on oath adopted by CW have clearly shown that the claimant’s grouse is that he was compulsorily retired from service without being accorded fair hearing, as was not charged before any tribunal, panel or court martial before he 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.
111. 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 nullify 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.
112. The claimant has vide his pleading and evidence before the court stated that the provisions of the Armed Forces Act and Harmonized Terms and Condition of Service for Officers 2012, (Revised), were not strictly complied with by the defendants before the claimant was compulsory retired from service.
113. 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.
114. From the content of exhibit C, the claimant was compulsorily retired from service on ground of disciplinary i.e serious offences, regulation 09.02c(4).
115. The defendants have not filed any defence to the claimant’s suit. This goes to show that the defendants have admitted all the facts as averred in the statement of fact as the truth in this case. This is because the evidence of the claimant was uncontradicted or unchallenged, by way cross-examination. The law is well settled that where averments of a party are not contradicted by the adverse party, they are deemed admitted. In the instant case, the averments of the claimant were not contradicted. In the circumstance, they were deemed admitted. This court will accept the unchallenged and uncontradicted evidence of the claimant. See Sanyaolu v. Coker (1983) 1 SCNLR 168; Fadiora v. Gbadebo (1978) 3 SC 219, [Adefarasin v. Dayekh (2007) 11 Bature v. N.D.I.C. (2016] 11 NWLR 291.
116. Furthermore, the cross-examination of CW has strengthened his evidence in that he insisted that he was not retired because of partisanship, that he was in Bayelsa as commander supervising election and not participant. He also stated the procedure of appeal is writing to president and he has done that. The defendants through their cross-examination have not succeeded in discrediting the evidence of the claimant.
117. It is also to be remembered that the law is trite 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 C, that the claimant was compulsorily retired based on ground of disciplinary i.e serious offences, therefore, they are duty bound to adduced credible evidence in proof of the reason given and compliance with due process. The failure of the defendant to file defence in proof to show that the claimant was accorded fair hearing and the retirement was in compliance with Armed Forces Act and the Harmonized Rules and Regulation Senior Staff 2012, (Revised), coupled with failure to justify the reason for compulsory retirement of the claimant has rendered the compulsory retirement invalid and without any basis.
118. In the circumstances, I hereby ordered reinstatement of the claimant back to his post with all his rights and privileges.
119. 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 becomes moot and academic, dissipating energy in considering it is not necessary, I hereby discountenanced it.
120. For avoidance of doubt the orders of the court are:
a. The compulsory retirement of the claimant vide exhibit C, is hereby declared null and void and of no effect whatsoever, as it was not done in line with extant rules and regulations.
b. The letter of compulsory retirement exhibit C, is hereby set aside for being null and void and of no effect whatsoever.
c. The claimant is hereby reinstated back to his post in the Nigeria Army with all his rights and privileges.
d. 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.
e. I make no order as to cost.
121. Judgment is entered accordingly.
Abdul Mohammed, Esq; for the claimant.