Some army officers await compliance by the military authorities with the ruling of the National Industrial Court and a parliamentary resolution which ordered their reinstatement on the ground of illegal dismissal, even as the Army has remained silent on it.
On June 9, 2016, Colonel Mohammed Auwal Suleiman woke up to a call from an officer from the Army Headquarters.
He was told that he had been compulsorily retired by the army along with 37 other senior officers though he had not reached the retirement age.
He received a letter to this effect on June 12 and therein it was stated that the retirement took effect from June 9, pursuant to the provisions of Paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Officers, 2012 (Revised). The compulsory retirement according to the letter was done on disciplinary ground bordering on a serious offence, court papers revealed.
Colonel Mohammed was not the only one thrown into confusion, as 21 of the 38 officers retired at the same time felt an injustice had been done to them and decided to challenge it.
Army’s reason for the retirement
Days after news of the mass compulsory retirement broke and following criticisms from some quarters, the army, through its then director of public relations, Col. Sani Kukasheka Usman, defended the action in a bid to debunk allegations that the exercise had an ethnic conotation.
Usman said, “We wish to state that only 38 senior officers were affected by the retirement exercise. For the avoidance of doubt the following is the statistics of the officers retired compulsorily; 9 Major Generals, 10 Brigadier Generals, 7 Colonels, 11 Lieutenant Colonels and a Major.
“Their retirement was based on service exigencies. It should be recalled that not too long ago some officers were investigated for being partisan during the 2015 General Elections.
“Similarly, the investigation by the Presidential Committee investigating defence contracts revealed a lot. Some officers have already been arraigned in court by the Economic and Financial Crimes Commission (EFCC). People should therefore not read this out of context. The military must remain apolitical and professional at all times.”
‘We were edged out to divert attention’
Countering the position of the army, one of the officers told Daily Trust on Sunday that they believed the Chief of Army Staff used their compulsory retirement to divert attention from the issues of his alleged corruption as regards the Dubai properties and calls for his prosecution over the Shiites killings of December 12, 2015.
“He achieved the purpose as the media turned its focus on the retired officers. As there were no official offenses tagged on the officers, several allegations including a coup were peddled,” he said.
The position of the army painted the retired officers with partisanship and corruption in public view, some of them said.
Legal, parliamentary reprieve
Five of the aggrieved officers as at February 5, 2020, have got legal reprieve as several courts have ruled against the compulsory retirement.
They include: Major General Ijioma Nwokoro Ijioma, Colonel Danladi Riba Hassan, Colonel Mohammed Auwal Suleiman, Lieutenant Colonel Abdulfatai Mohammed and Lieutenant Colonel Thomas Arigbe.
The National Assembly has also directed the army to reinstate two other officers, Colonels Chidi Kalu Ukoha and Osita Nwankwo.
Letters to the president
Before the court judgments and National Assembly resolutions ordering the reinstatement of the seven, 22 officers who decided to challenge their retirement had appealed to President Muhammadu Buhari, through the Chief of Defence Staff.
The appeal was said to be pursuant to Paragraph 09.02(e) of the same Harmonised Terms and Conditions of Service for the Nigerian Armed Forces Officers 2012 (Revised).
The paragraph stipulates: “An officer called upon to retire, resign or relinquish his commission shall if so desired, appeal to Mr President, Commander in Chief of the Armed Forces, through the Chief of Defence Staff within 30 days to have his case considered”.
The officers had appealed to the commander in chief for their cases to be “reconsidered on the basis of wrongful retirement”.
In one of the letters dated June 22, 2016, Colonel Hassan told the president that contrary to the partisanship allegation levelled against him by the army, he as the then Garrison Commander of 7 Division and the then 7 Division Intelligence Commander were ordered to scuttle and stop by all means, the 2015 presidential election results from Borno State from being announced.
“Instead, we took the path of honour by standing firm on loyalty to our nation and sticking to our oath of commission,” he said.
The only response to the letter got by the officers was an acknowledgement letter from the Defence Headquarters titled.
“I am directed to acknowledge receipt of your letter dated 23 June, 2016 in respect of above subject matter in which you appealed against your compulsory retirement from the Nigerian Army in line with Para 09.02(e) of the HTACOS 2012 Officers (Revised).
“I am to further inform you that your appeal is receiving due attention. Please accept the esteemed regards and best assurances of the CDS”, read a letter signed by Rear Admiral AA Dacosta for the Chief of Defence Staff.
When there was nothing forthcoming, Colonel Suleiman wrote a reminder, this time to Vice President Yemi Osinbajo, who was then the acting president.
“It is now eight months since the redress letter was submitted, but no response from the presidency. I therefore dutifully resubmit a copy of my appeal as a reminder and pray for your kind consideration, please, Your Excellency,” the letter read in part.
About a month after, Colonel Suleiman wrote a similar reminder to the Minister of Defence, all to no avail.
Left with no other option, some of the officers took their matters separately to the National Industrial Court and by February 5, 2020, five officers got court judgments directing the Nigerian Army to reinstate them.
Maj. Gen. Ijioma
Justice Edith Agbakoba of the National Industrial Court, Abuja, on June 3, 2019 ordered the reinstatement of Maj.-Gen. Ijioma, declaring that there was evidence that due process was not followed in his retirement.
She held that Ijioma was not informed of his offence, neither was he tried before a court martial for any offence before the retirement.
Justice Agbakoba also held that the claimant was not accorded fair hearing by being given the opportunity to defend himself.
She, therefore, declared that the retirement was wrongful, illegal, null, void and of no effect and consequently ordered his reinstatement with the payment of all entitlements and privileges.
The judge equally restrained the defendants, and their agents from stopping, interfering or victimising the officer.
She concluded by awarding N200,000 in favour of Ijioma as cost of prosecuting the suit.
Counsel to Ijioma, Godwin Iyinbor, had told the court that there was no justifiable reason for the early compulsory retirement as he had not attained the mandatory retirement age or served the army for 35 years.
Iyinbor said the retirement age for Major Generals was 56 years and the claimant was only 53 years at the time of the retirement, and had only served for 32 years, 11 months and five days, as against the 35 years service provided for in Rule 020810 of the Federal Government Public Service Rules, which is also applicable to the military.
Ijioma, in his statement of claims, stated that on June 10, 2016, while at work, he got a text message from one Lt.-Col. S.O.G. Aremu, Staff Officer to the Military Secretary in charge of recruitment, deployment and appointment, informing him that the Army Council which sat on June 9, 2016, had retired him.
He said he later got another letter that the Army Council at its meeting of June 9, 2016, approved his compulsory retirement from the Nigerian Army, with effect from June 9, 2016, pursuant to the provisions of Paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service.
He said the compulsory retirement according to the letter was done on disciplinary ground bordering on serious offence.
Ijioma further said no proceeding was held to try him, no verdict given, and no record of proceedings was compiled and transmitted with the verdict to Army Council for ratification.
He also told the court that he was never given any charge in the prescribed Form AB 252, which was the means of reporting an offence against service personnel.
Delivering judgment on January 8, 2019 in the suit filed by Colonel Hassan, the trial judge, Justice Sanusi Kado, held that with the failure of the defendants to convince the court of the disciplinary ground for compulsorily retiring him, the said letter of compulsory retirement was null and void and of no effect.
“Exhibit CW1A 1-3 (letter of compulsory retirement) having been issued not in line with the Harmonised Terms and Conditions of violation of extant rules, the letter is null and void and of no effect for having been issued without due process. It is hereby set aside.
“The claimant is hereby reinstated to his post in the Nigerian Army with all his rights and privileges. 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,” Justice Kado held.
One Captain N. Okorie of the Directorate of Legal Services (Army), who testified on behalf of the defendants stated among others that the claimant having overstayed his commission with more than eight years, cannot complain of compulsory retirement.
The judge in the final determination of the matter, however, rejected the Army’s claim, holding that by allowing Hassan to continue his service after the said expiration of 18 years of service in 2012, the Army was in law deemed to have re-engaged him by their conduct and were stopped from denying giving approval for his re-engagement.
Again, the army was floored in the suit filed by Col. Suleiman before the same judge that determined the suit by Col. Hassan.
Delivering judgement in Col. Suleiman’s suit on February 5, 2020, the judge, Justice Kado, held that the purported retirement effected through a letter of June 9, 2016 was unlawful, illegal, unconstitutional and of no effect whatsoever.
Justice Kado rejected the claim that Suleiman was compulsorily retired from the Army on account of overstay of 18 years in service, adding that there was no evidence to the falsehood adduced to justify the unlawful act of the Army.
The judge took a swipe at the Army for breaching the doctrine of fair-hearing, adding that it was more surprising that Hassan was compulsorily retired without being court-martial, charged with any known offence, issued a query or indicted before the purported retirement was carried out.
Justice Kado rejected the evidence given by the only witness of the Army, David Ighodaro, to the effect that Suleiman was compulsorily retired because he overstayed beyond the 18 years he ought to have stayed in the Army and thus allegedly breached Section 30 of the Nigerian Army Council Act.
The judge noted that the witness lacked knowledge of the case and was not a reliable witness because throughout his evidence he never drew the attention of the court to the conditions of service that stipulated that Suleiman was to serve only 18 years. Rather, Justice Kado held that from the words of the letter of appointment issued to the colonel upon his commissioning as an army officer in 1995, the appointment was guided by the conditions of service in the Nigerian Army, adding that anything to the contrary as in the reason adduced for the unlawful retirement was a total and clear breach of the law.
Justice Kado further held that the claim of the colonel that he had served for 25 years and nine months diligently and received accolades nationally and internationally was not disputed by the Nigerian Army and therefore there was no lawful reason to justify the allegation of serious offence in the purported letter of compulsory retirement.
The court agreed with the counsel to Col. Suleiman, Olayinka Adedeji, that the purported retirement was done in bad faith and ought not to be allowed to stand in the face of the law. Consequently, Justice Kado declared the retirement and the letter as null and void and of no effect whatsoever.
During his testimony before the court, Colonel Suleiman told the court that the disciplinary process for an officer of his cadre in the Nigerian Army according to the rules ought to start with the offence first reported on a chart called ‘Charge Sheet AFB 252’; subsequent trial by a General Court Martial, then trial by a Court Martial where the accused is allowed to defend himself to underscore fair hearing.
He said the record of the proceedings was thereafter compiled and transmitted with the verdict to Army Council for ratification.
Suleiman, a former defence attaché in Chad Republic and a recipient of the national honour of Member of the Order of the Federal Republic (MFR), said instead of following these procedures, the Army took to the media to announce the compulsory retirement, adding that it was false and malicious for the Army to claim that it was done to purge it of corrupt officers indicted by either the Presidential Arms Panel or the Election Petition Panel notwithstanding the fact that he had no factual involvement at all in either of the two grounds.
Lt. Col. Mohammed
Delivering judgement in the suit instituted by Lt. Col. Mohammed on January 14, 2020, Justice Rekiya Hastrup of the National Industrial Court in Abuja, held that his compulsory retirement was unlawful, null and void. She added that the letter of retirement issued to him on June 9, 2016 was also null and void. The judge held that Mohammed be reinstated to his position with all benefits. Justice Hastrup further awarded N200,000 in favour of Mohammed.
After the judgment, the judge informed the counsels to the Army, Dauda Sani Abdulrahman and Ibrahim Etsu, to advise their clients to immediately comply with the order of the court and reinstate him with all his benefits.
Lt. Col. Arigbe
Just as with the other cases, the Lagos division of the National Industrial Court on January 16, ordered the reinstatement of Lt. Col. Thomas Arigbe.
Delivering judgment in the suit, Justice Paul Bassi held that the compulsory retirement was “wrongful, unconstitutional, null and void for breach of fair hearing.”
Aside the reinstatement order, the judge ordered the Army to pay him all his entitlements up to the date of reinstatement. He also awarded a N300,000 cost against the Army.
Aside the court judgments, two other officers that approached the National Assembly also got favourable resolutions.
In a letter dated November 23, 2017 to the Secretary to the Government of the Federation, titled “Report on petition by Colonel Chidi Kalu Ukoha against the Nigerian Army for his wrongful retirement from the army”, the clerk of the National Assembly, Ataba Sani-Omolori, said the senate considered the report on the petition at its sitting on November 21, 2017.
He said the senate “consequently resolved to: (i) urge the Nigerian Army to immediately reinstate Colonel Chidi Kalu Ukoha and pay all his entitlements accordingly; and (ii) caution the Nigerian Army against arbitrary disengagement of its officers, as such action would not only discourage serving officers and soldiers from giving their full commitment to the Army and the nation, but would also amount to colossal loss of national resources spent by the federal government on the training of such officers only to suddenly dismiss them.
The letter further urged the SGF to communicate the resolution to the Nigerian Army “for necessary action.” A similar resolution was reached by the House of Representatives in February 2018 on the petition filed by Col. Nwankwo.
Departed while waiting for justice
While the seven officers could say they have partially got reliefs and await compliance by the army, one of the 22 officers that appealed the compulsory retirement cannot. While awaiting justice, Lt. Col. Ojecho Baba-Ochankpa, a former Commanding Officer, 343 Air Defence Artillery, Elele-Rivers State, died on January 31, 2017. He died in his sleep in London, England while undergoing a Master’s degree programme in Coventry University.
Army remains silent
Efforts by Daily Trust to get the reaction to the court orders were unsuccessful as officers contacted on it did not respond to the enquiries.