Ogiri Nimiye Henry v Nigerian Airforce

• Judge: Hon. Justice B. B. Kanyip, Phd
• Judgment Date: 14 July 2021
• Respondent: Nigerian Airforce
• Appellant: Ogiri Nimiye Henry
• Docket Number: SUIT NO. NICN/ABJ/185/2018
• Counsel: 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.
• Court: National Industrial Court (Nigeria)

INTRODUCTION

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...