IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: 14 JULY 2021 SUIT NO. NICN/ABJ/185/2018
Ogiri Nimiye Henry - Claimant
Nigerian Airforce - Defendant
G. N. Bako, Mrs C. N. Okwori, A. A. Ejunejowo, and J. I. Christopher, for the claimant.
Mallam J. A. Adamu, Deputy Director, Federal Ministry of Justice, and A. Salman Mohammed, Senior State Counsel, for the defendant.
1. The claimant took out this action vide a complaint filed on 28 June 2018. The complaint is accompanied by the statement of claim, list of witnesses, list of documents and copies of the documents. By his statement of claim, the claimant is asking from the Court, against the defendant, the following reliefs:
(a) A declaration of this Honorable Court that the dismissal of the claimant by the defendant is wrongful.
(b) A declaration of this Honorable Court that the arrest and remand of the claimant in prison custody at the instance of the defendant is in breach of his fundamental human rights.
(c) An order of this Honorable Court directing the re-instatement of the claimant by the defendant or in the alternative an order of this Honorable Court directing the defendant to retire the claimant in line with the Armed Forces Act.
(d) An order of this Honorable Court directing the defendant to pay to the claimant the sum of N4,875,000.00 (Four Million, Eight Hundred and Seventy-Five Thousand Naira) only representing the 50 months arrears of the monthly salaries of the claimant from April 2014 until the commencement of this action.
(e) An order of this Honorable Court directing the defendant to pay to the claimant arrears of salaries after the commencement of this matter until the final determination.
(f) An order of this Honorable Court directing the defendant to pay to the claimant the sum of N100,000.00 (One Hundred Thousand Naira) only as damages suffered by the claimant.
(g) And for such further order(s) as this Honorable Court may deem necessary in the circumstances.
2. The defendant reacted by filing its statement of defence, witness statement on oath, list of witnesses and documents to be relied upon. The list of the said documents was not filed. The claimant filed his reply to the defendant’s statement of defence, and a motion to regularize same. The claimant did not, however, move the said motion.
3. At the hearing, the claimant testified on his own behalf as CW and tendered Exhibits A, B, and C i.e.:
• Exhibit A is a certified true copy (CTC) of the order of the High Court of the Federal Capital Territory dated 28 February 2017 discharging the claimant of the offence of armed robbery.
• Exhibit B is the claimant’s appeal letter dated 13 December 2017 addressed to the Chief of Air Staff of the defendant.
• Exhibit C is the defendant’s letter to the claimant dated 27 September 2017.
4. On behalf of the defendant, Ft. Lt. S. A. Rabiu, Legal Officer with the Directorate of Legal Services, NAF Headquarters, Abuja, testified as DW and tendered Exhibits D1, D2, D3, D4, D5 and D6 i.e.:
• Exhibit D1 is a CTC the defendant’s submission of an Air Police preliminary investigation report on an alleged case of armed robbery against NAF04/21609 CPL Ogiri H of DHQ Garrison Abuja on 21 Feb 14.
• Exhibit D2 is a CTC of defendant’s preliminary report on a case of armed robbery and escape from custody against NAF04/21609 CPL Ogiri NH of DHQ Gar on 21 Feb 14.
• Exhibit D3 is a CTC of the defendant’s undated precis of proceeding at the trial (recital of facts and evidence on the accused) NAF04/21609 CPL Ogiri Mimiye Henry.
• Exhibit D4 is a CTC of the defendant’s charge sheet Form B 252 against the claimant dated 1 August 2014. The claimant was charged for failure to perform military duties, and found guilty — for which the penalty is “28 DAYS IHL FROM THE UNIT G/ROOM” .
• Exhibit D5 is a CTC of the defendant’s undated precis of proceeding at the trial (recital of facts and evidence on the accused) NAF04/21609 CPL Ogiri Mimiye Henry.
• Exhibit D6 is a CTC of the defendant’s charge sheet Form B 252 against the claimant dated 1 August 2014. The claimant was charged for escape from confinement or custody, and found guilty — for which the penalty is dismissal from service.
5. At the close of trial, parties were given time within which to file and serve their respective final addresses. The defendant, to file first, was given 14 days within which to file and serve its final written address. Upon service of the defendant’s final written address, the claimant had 14 days too within which to file and serve his final written address. Thereafter, the defendant had 7 days within which to file and serve its reply on points of law.
6. Unfortunately, and no reason was given to the Court, the defendant did not comply with the directive. And so the claimant filed his final written address on 24 March 2021. The defendant would, however, file its final written address on 1 April 2021 with a motion of that date to regularize same. On the date set for adoption of final written addresses, the defendant did not show up to move its motion for regularization of its written address. This Court, however, deemed the motion as moved and granted. Given Order 45 Rule 7 of the National Industrial Court (Civil Procedures) Rules 2017 (NICN Rules 2017), this Court then deemed the defendant’s final written address as adopted. No reply on points of law was filed.
THE CASE BEFORE THE COURT
7. The case of the claimant is that while on duty at the Sani Abacha Barracks and just outside the barracks he was attacked by three civilians that were unknown to him without provocation and in the process and in defence of himself he injured one of the three civilians that assaulted him and escaped from their attack and ran into the barracks for safety with him sustaining some minor injuries. That to his shock he was arrested a few minutes later by the Military Intelligence (Air Force and Navy) in his duty post for allegedly robbing the three civilians that attacked him just outside the barracks and was subsequently wrongfully dismissed from the service of the defendant after about 17 years of meritorious service.
8. The defendant on their part allege that the claimant committed the offence of armed robbery leading to his trial for the offences of failure to perform military duty and escaping from lawful custody. That he was accordingly dismissed from the service of the defendant for allegedly escaping from lawful custody. The claimant denies this.
THE SUBMISSIONS OF THE CLAIMANT
9. The claimant submitted four issues for determination, namely:
(a) Whether or not the defendant’s court martial can impose any punishment outside the law on the claimant.
(b) Whether or not the dismissal of the claimant by the defendant is wrongful in law.
(c) Whether or not the claimant committed the offence of armed robbery as alleged by the defendant.
(d) Whether or not the prosecution of the claimant by the Police at the instance of the defendant is lawful.
10. On issue (a), the claimant submitted that the defendant had alleged in its pleadings that the claimant committed the offence of armed robbery leading to his trial for the offence of failure to perform military duty. That while the claimant was convicted and sentenced to 28 days imprisonment for the offence of failure to perform military duty, he was dismissed from the service of the defendant after his purported conviction for the offence of escaping from lawful custody. That section 87 of the Armed Forces Act relied upon by the defendant to dismiss the claimant provides as follows:
A person subject to service under this Act who escapes from arrest, prison or other lawful custody (whether military or not) is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
11. To the claimant, the punishment provided for under this section, relied on by the defendant to dismiss the claimant, is one for a term not exceeding two years imprisonment or any less punishment provided for by the Act. That section 36(8) of the 1999 Constitution provides as follows:
No person shall be held guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
That Queen v. Eyo & ors  2 NSCC 331 at 339 held that a trial court cannot impose a sentence in excess of the maximum sentence created under the law creating an offence.
12. That assuming, therefore, but not conceding to the contention of the defendant, that the claimant was dismissed for allegedly escaping from the custody of defendant, based on the statutory provisions and the judicial authorities cited above, the Court-Martial of the defendant acted unlawfully and out of jurisdiction by dismissing the claimant from the service of the defendant as section 87 of the Armed Forces Act relied upon does not contemplate dismissal as the punishment on the conviction for the offence of escaping from lawful custody.
13. Regarding issue (b), it is the contention of the claimant that his dismissal by the defendant was wrongful while vehemently denying the allegations of the defendant against him. That it is trite law that an accused person cannot be sentenced to a punishment outside of the provisions of the law creating the offence, citing section 36(8) of the 1999 Constitution.
14. Furthermore, that it is trite law that the determination of the employment of an employee with a statutory flavor is governed by the terms of service as provided for by the enabling statute, citing University of Maiduguri Teaching Hospital Management Board v. Dawa  16 NWLR (Pt. 739) 424 CA, Shitta-Bey v. Federal Civil Service Commission  12 NSCC 26 and Olaniyan v. University of Lagos  15 WRN 44. That Eze v. Spring Bank Plc  20 WRN 1 SC at 14 held that where the contract of service is clothed with statutory flavor i.e. the statute regulates the appointment and dismissal of an employee, the requirements of the statute must be complied with so that where a hearing is provided for, the hearing must comply with the rules of natural justice. That the case further held that where there is a departure from the prescribed procedure or a violation of elementary rules of natural justice, then dismissal is unlawful. The claimant also referred to Oloruntoba-Oju v. Raheem  26 WRN 1 SC at 20.
15. For issue (c), it is the case of the claimant that he was falsely accused of committing the offence of armed robbery. It is further the evidence of the claimant that subsequent to his discharge on 28 February 2017 about 16 months before the commencement of this action, he was not charged by the Police or any other agency. That the testimony of the claimant was corroborated by the defendant particularly in paragraph 14 and 15 of their statement of defence as well as the oral testimony of the defendant’s sole witness under cross-examination. In the proof of his case, the claimant tendered Exhibit A being the CTC of the order of the High Court of the Federal Capital Territory dated 28 February 2017, which order discharged the claimant of the offence of armed robbery.
16. On the other hand, that the defendant contended that the claimant committed the offence of armed robbery leading to the trial of the claimant by the defendant for the offences of abandonment of military duty and escaping from lawful custody and subsequently handing him over to the Nigeria Police for prosecution for the offence of armed robbery after dismissing the claimant. The defendant in the proof their case tendered 6 exhibits.
17. That the defendant in paragraph 6 of the statement of defence alleged that the claimant on 21 February 2014 after abandoning his duty at his duty post in DEPOWA Nursery and Primary School within the Mogadishu Cantonment, went outside the gate and robbed some civilians and in the process stabbed one of his victims by name Mr John Matthew. However, that the allegation in paragraph 6 of the defendant’s statement of defence was contradicted by Exhibit D1 (the defendant’s submission of an Air Police preliminary investigation report on an alleged case of armed robbery against NAF04/21/609 CPL Ogiri H of DHQ Garrison Abuja on 21 Feb 14) wherein it was stated that the claimant was identified by the said Mr Matthew John as his assailant in the midnight of 20 February 2014 who stabbed him in the neck and dispossessed him of his phone. That the defendant’s witness under cross-examination testified that he does not know whether the claimant robbed the said civilians alone or in company of other gang members as alleged in their statement of defence. That it is trite law that an allegation or accusation of the commission of a crime must be proved beyond reasonable doubt whether in a criminal or civil procedure; citing section 135(1) of the Evidence Act 2011, which provides that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt, and Otukpo v. John  38 WRN 1 SC at 8.
18. In respect of issue (d) i.e. whether the prosecution of the claimant by the Police at the instance of the defendant is lawful, the claimant submitted that it is the evidence of the claimant and the defendant that subsequent to the alleged dismissal of the claimant by the defendant, he was handed over the Police for trial for armed robbery based on the same facts for which he was tried by the defendant and was remanded in prison custody for about two years. That the testimony of the claimant was corroborated by the evidence of the defendant particularly in paragraphs 12, 13 14 and 15 of the statement of defence. To the claimant, it is trite law that an accused person cannot be tried twice on the same sets of facts, citing section 36(9) of the 1999 Constitution, which provides as follows:
No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.
Accordingly, that the handover of the claimant to the Police by the defendant for prosecution for the alleged offence of armed robbery based on the same facts for which the defendant tried and convicted the claimant for is akin to subjecting him to double jeopardy by subjecting him to trial twice on the same facts.
19. In conclusion, and summarizing his case, the claimant submitted thus:
• By section 87 of the Armed Forces Act relied upon by the defendant to dismiss him, the punishment provided for the alleged offence upon conviction is that is imprisonment not exceeding a term of two years or any other lesser punishment as prescribed by the Armed Forces Act.
• By section 36(8) of the 1999 Constitution no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
• Accordingly, the defendant exceeded the powers granted to it by section 87 of the Armed Forces Act by dismissing the claimant for an offence that statute provides as the maximum punishment an imprisonment for a term not exceeding two years, and as such his alleged dismissal is wrongful for being in contravention of the provisions of the Armed Forces Act.
• Additionally, the handing over of the claimant to the Police by the defendant for trial for armed robbery over the same sets of facts and for which the claimant was tried and convicted amounts to double jeopardy and as such unlawful and a breach of his fundamental human rights and in breach of section 36(9) of the 1999 Constitution.
• Finally, that the claimant has proved his case by the preponderance of evidence deserving of a favorable judgement of this Court, urging the Court to grant his prayers.
THE SUBMISSIONS OF THE DEFENDANT
20. The defendant submitted only one issue for determination, namely: whether the claimant in this case was wrongfully dismissed. The defendant answered in the negative. That unfair dismissal is an employment situation where an employee is dismissed from his role or duty and this dismissal is unfair due to the reason given not being a sufficient one, or if the employer did not follow the correct process for dismissing the employee. That unfair dismissal would not cover a situation where the employee is dismissed for incompetence, or where the employee has engaged in misconduct or criminal conduct. That where the employee has been dismissed for a substantial and valid reason, it will not suffice to say that he was unfairly or wrongfully dismissed.
21. The defendant continued that in the instant case, the claimant after abandoning his duty post at DEPOWAS NUSERY AND PRIMARY SCHOOL within the Mogadishu cantonment on 21 February 2014 went outside the gate and robbed three civilians and in the process stabbed one of his victims by name Mr John Mathew. That the victim in this case reported the incident at the military police gate at the Mogadishu Cantonment. That the claimant on his way back into the cantonment in mufti was arrested by some intelligence personnel who upon searching the bag he was carrying found in it his camouflage uniform and a dagger stained with blood. That upon being charged, the claimant escaped from custody contrary to section 87 of the Armed Forces Act Cap A20 LFN 2004 and was found guilty, hence he was dismissed from service of the Nigerian Air Force. To the defendant, the claimant in this matter was dismissed as a result of grievous misconduct. He not only abandoned his duty post but he equally committed an offence for which he was tried and found guilty of the charge levied against him.
22. The defendant went on that generally an employee who seeks a declaration that the termination of his employment was wrongful must prove the following material facts:
(1) That he is an employee of the employer.
(2) That he kept the terms and conditions of his employment.
(3) That the way and manner by which he was removed was wrongful.
That the claimant in this matter has not proved requirements (2) and (3), and the defendant has proved adequately that the claimant was not wrongfully dismissed, referring to Olaniyan v. Unilag  5 NWLR (Pt. 9)599 and Shitta-Bey v. Federal Public Service Commission 12 NSCC 28;  1 SC 40.
23. That it has equally been firmly established that when an employee complains that his employment was wrongfully terminated he has the onus of proving the following:
(i) To place before the court the terms of the contract of employment; and
(ii) To prove in what manner the said term were breached by the employer
That it is a settled law that he who asserts must prove. That nothing has been shown to this Court by the claimant to prove his case. That the absence of this particularization rendered the relief vague and uncertain. That it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts, citing Okomu Oil Palm Co. v. Iserhienrhien  5 NSCQR 802.
24. The defendant proceeded that it is settled law that an employer can summarily dismiss an employee in all cases of gross misconduct provided that the affected employee was given fair hearing and this is so whether the employee is in private employment or statutory employment, citing Ziideeh v. Rivers State Civil Service Commission  All FWLR 243 at 265-266 and Annam v. Benue State Judicial Service Commission  All FWLR (Pt. 296) 843. That this was complied with as the employee of the defendant was not just dismissed he was given fair hearing during his trial and was found guilty of the allegation against him.
25. That before an employer can dispense with the services of an employee, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal even when the allegation for which the employee is being dismissed involves allegation of crime, citing Jirgbagh v. UBN Plc  2NWLR (Pt. 396) 11 at 28-29 and Yusuf v. Union Bank of Nigeria  6 NWLR (Pt. 457) 632.
26. In conclusion, the defendant then brought to the notice of the Court that the defendant has promoted the claimant severally as his employer, which the claimant affirmed in his statement of claim, and it was upon the wrongful act of the claimant that he was subsequently dismissed. That in the interest of justice, the claims of the claimant should be set aside and the matter be held in favour of the defendant; urging the Court to dismiss the claims of the claimant and enter judgment in favour of the defendant.
27. No reply on points of law was filed.
28. I have given due consideration to all the processes and submissions of the parties. A preliminary point or two will do here. The NICN Rules 2017 enjoin in Order 45 Rule 2(2) that a written address shall be set out in paragraphs and numbered serially. Failure to abide by this may render the written address incompetent. See Order 45 Rule 3(2) of the NICN Rules 2017. Contrary to Order 45 Rule 2(2), the claimant in his final written address has two paragraphs 6.4, two paragraphs 6.5 and two paragraphs 6.6. I shall, however, overlook this breach.
29. Counsel for the defendant on his part in paragraph 3.01 of the defendant’s final written address decided to address this Court as “Your worship”. I do not know if counsel is actually aware of the constitutional status of this Court as a superior court of record. Once again, I shall overlook this breach of judicial courtesy.
30. I indicated earlier that the claimant in answer to the defence processes filed his reply to the defendant’s statement of defence, and a motion to regularize same. But that the claimant did not, however, move the said motion. Aside from not moving the motion, there was no supporting deposition to the claimant’s reply. And so when the claimant testified in chief, he only adopted his deposition of 28 June 2018. What this signifies is that the claimant’s reply to the defendant’s statement of defence, which he filed on 13 December 2019, not supported by any deposition, is pleadings without evidence and so goes to no issue. The law is that pleadings cannot constitute evidence; as averments in pleadings on which no evidence is adduced are deemed to have been abandoned — for mere averments in pleadings without proof do not constitute proof of such facts unless such facts are admitted. See Ifeta v. SPDC  LPELR-1436(SC);  8 NWLR (Pt. 983) 585. The claimant’s reply to the statement of defence, which he filed on 13 December 2019 is accordingly one that cannot be used in this judgment. I so hold.
31. The defendant relied on a number of documents, two of which raise the issue of admissibility — although none of the parties made an issue in that regard. Exhibit D3 is an undated CTC of the defendant’s precis of proceeding at the trial (recital of facts and evidence on the accused) NAF04/21609 CPL Ogiri Mimiye Henry. And Exhibit D5 is a CTC of the defendant’s undated precis of proceeding at the trial (recital of facts and evidence on the accused) NAF04/21609 CPL Ogiri Mimiye Henry. The law, as Aremu v. Chukwu  LPELR-3862(CA) puts it, is that a document, which bears no date of execution or when it comes into operation, is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date it was intended to operate. I went through the defendant’s witness statement on oath and saw no parole evidence showing when Exhibits D3 and D5 were written or the date they were intended to operate. Accordingly, Exhibits D3 and D5 are invalid and so cannot be used in this judgment. I so hold.
32. The claimant on his part tendered and relied on only three documents (Exhibits A, B and C). Exhibit B is the claimant’s appeal letter dated 13 December 2017 addressed to the Chief of Air Staff of the defendant. This said Exhibit B, as marked and tendered by the claimant himself, is a one paged document, which is incomplete, and has no page(s) where the claimant signed. This Court has over time held inadmissible incomplete documents. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9 October 2018, this Court held thus regarding the issue of the admissibility of an incomplete document:
Exhibit C3 is actually an incomplete document. The claimant did not tender it as an extract, which would have required certification as such, to warrant it being used as such in this judgment. See Oluwole Olatunji Kolade v. The Industrial Training Fund Governing Council & anor unreported Suit No. NICN/LA/60/2015, the judgment of which was delivered on 14th June 2016. As an incomplete document, the authenticity of Exhibit C3 is in issue. In a similar scenario, this Court in Oyewumi Oyetayo v. Zenith Bank  29 NLLR (Pt. 84) 370 held inadmissible and of no evidential value an incomplete exhibit on the ground that the fact of being an incomplete document rendered “suspect its authenticity and probative value”. Also, in Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013, this Court rejected incomplete documents and so discountenanced them, holding that they have no evidential value. See also Overland Airways Ltd v. Captain Raymond Jam  62 NLLR (Pt. 219) 525 and Mr. Godwin Agbone v. Nulec Industries Ltd unreported Suit No. NICN/LA/427/2012, the judgment of which was delivered on 2nd February 2015. In like manner, Exhibit C3 is hereby discountenanced for purposes of this judgment as it has no evidential value.
See further Adesoji Adedokun & 3 orsPeninsula Asset Management & Investment Company Limited & anor unreported Suit No. NICN/LA/285/2013, the judgment of which was delivered on 16 July 2018.
33. In the instant case, therefore, as an incomplete document, Exhibit B is inadmissible and so has no evidential value. I so hold.
34. As can be seen from relief (a), the core of the claimant’s case is that his dismissal by the defendant is wrongful for which, given the other reliefs he claims, he wants reinstatement or retirement and payment of backlog of salaries. The onus is on the claimant to prove to this Court how his dismissal was wrongful. The claimant made the issue of his dismissal being wrongful his issue (b) in his final written address. And in addressing this issue (b), all the claimant stated is that he vehemently denies the allegations of the defendant against him. The claimant then talked about being sentenced to a punishment outside of the law creating the offence. The claimant acknowledged that the determination of the employment of an employee with statutory favour is governed by the terms of service as provided by the enabling law. The claimant, however, failed to show to this Court first, the said terms of service, and secondly how the said terms of service were breached by the defendant. Bukar Modu Aji v. Chad Basin Development Authority & anor  LPELR-24562(SC) made it very clear that waving the flag of a breach of the constitutional right to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the Court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can even be entertained. The conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination. In the instant case, the claimant provided none.
35. A look at the pleadings and evidence of the claimant will show material contradictions in the story of the claimant. For instance, in paragraph 14 of the statement of claim, and paragraph 15 of his deposition, the claimant averred that on 21 February 2014, “while on duty at the Sani Abacha Barracks, just outside the barracks I was attacked by three civilians that were unknown to me without provocation and in the process and in defence of himself I injured one of the three civilians that assaulted me and escaped from their attack and ran into the barracks for safety with me sustaining some minor injuries”. Now if the claimant was “on duty at Sani Abacha Barracks”, what was he doing and could he have been on the same said duty “just outside the barracks”? Could the claimant have been on duty at the barracks (suggesting that he was inside the barracks) and still be outside of the barracks? If the claimant was outside the barracks when he should be on duty at the barracks, can it be said that he was at his duty post?
36. When the claimant averred in paragraph 15 of the statement of claim and paragraph 16 of his deposition that he “was arrested a few minutes time by the Military Intelligence…in [his/my] duty post for allegedly assaulting and injury (sic) one of the three civilians that attacked [him/me] just outside the barracks”, how few were these minutes? In acknowledging that he was arrested at his duty post for an assault that occurred “just outside the barracks”, the claimant once again acknowledged that he was not at his duty post when the assault occurred. Can he then complain as he is presently doing that the charge against him for leaving his duty post is not founded? I do not think so.
37. In paragraph 18 of the statement of claim, the claimant alleged that he was informed orally that he has been dismissed from service by the defendant for allegedly assaulting a civilian. He then proceeded to plead “the said letter of dismissal”. There is no letter of dismissal before the Court. In paragraph 19 of his deposition, the claimant only talked of him being informed orally that he was “dismissed from service by the defendant for allegedly assaulting the said civilian”.
38. In paragraph 20 of the statement of claim, as well as paragraph 21 of his deposition, the claimant averred that he “was remanded for about two years between 20th August, 2015 and November, 2016…” The period 20 August 2015 to November 2016 cannot be about two years.
39. As it is, the claimant has not successfully shown to this Court how his dismissal was wrongful since the terms of his service were not even put before the Court. Reliefs (a) and (c) cannot accordingly be granted. I so hold.
40. Reliefs (d) and (e), praying for arrears of salaries, aside from being tied to reliefs (a) and (c), are prayers for special damages, which, by NNPC v. Clifco Nigeria Ltd  LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus  LPELR-20873(CA), must be specifically pleaded and strictly proved. As it is, there is no pleading and proof of the claimant’s monthly salary to warrant the granting of reliefs (d) and (e). These reliefs fail and so are dismissed.
41. The claimant complained about breach of his fundamental rights. And so in relief (b) he is praying for a declaration that his arrest and remand in prison custody at the instance of the defendant is in breach of his fundamental human rights; for which in part, as of also the wrongful dismissal, the claimant in relief (f) is praying for N100,000 as damages. Relief (g) is an omnibus relief — the Court should grant any other order it may deem necessary. The three other issues he farmed in his final written address are the grounds upon which he complains of the breach of his fundamental rights. The three issues are: whether the defendant’s court martial can impose any punishment outside the law on him; whether he committed the offence of armed robbery as alleged by the defendant; and whether his prosecution by the Police at the instance of the defendant is lawful.
42. The question whether the claimant committed the offence of armed robbery is strictly speaking outside the remit of this Court. The robbery was supposedly outside of the duty post of the claimant, as the evidence of the claimant himself shows that he left his duty post.
43. From the evidence before the Court, the claimant had three charges against him by the defendant:
(a) The assault on Mr John Mathew. It is for this that the claimant was referred to the Police, who then charged him to court. But because of want of diligent prosecution, the claimant was discharged by the court.
(b) Failure to perform military duty by abandoning his duty post — Exhibit D4. For this, the claimant was found guilty and sentenced to 28 days imprisonment with hard labour — paragraph 17 of the defendant’s deposition.
(c) Escape from confinement or custody for which he was dismissed — Exhibit D6. For this, the claimant was found guilty and sentenced to dismissal from service — paragraph 18 of the defendant’s deposition.
44. The argument of the claimant is that even if it were established that he was dismissed for allegedly escaping from the custody of defendant, the Court-Martial of the defendant acted unlawfully and out of jurisdiction by dismissing him from the service of the defendant. That this is because section 87 of the Armed Forces Act does not contemplate dismissal as the punishment for the conviction for the offence of escaping from lawful custody. In addition, that it is double jeopardy to dismiss him when he had already served a prison sentence; and in respect of the assault charge, he was discharged by a court of law.
45. I think that the claimant is misconceived in his argument that because he served a prison sentence it is double jeopardy to dismiss him. Employment law had never treated as double jeopardy the dismissal of an employee on grounds of misconduct for which an imprisonment had been imposed.
46. The claimant also complained that his trial for assault was at the insistence of the defendant. The evidence before the Court only shows that the defendant referred the matter of assault to the Police. It was the Police that decided to charge the claimant to Court. It was the Police that did not diligently prosecute the case by not calling any witness. There is nothing before the Court indicating that there was any insistence on the part of the defendant. I accordingly do not agree with the claimant that the defendant insisted on him undergoing the trial for assault at the High Court of the Federal Capital Territory (FCT). I so hold.
47. As it is, I am not satisfied that the claimant has proved his case to warrant the granting of any of the reliefs he prays for. Accordingly, the case of the claimant must fail; and I so hold. The case of the claimant, in its totality, is hereby dismissed.
48. Judgment is entered accordingly. I make no order as to cost.
Hon. Justice B. B. Kanyip, PhD