Thu. Aug 11th, 2022
Military Generals CDS Irabor, Defence Minister, Magashi and Army-Chief-Yahaya (Credit | PR Nigeria)

•All eyes on the Minister of Justice to act

With the Nigerian Army exhausting its appeal on the judgments of the respective courts to reinstate the 38 senior officers it compulsorily retired in 2016, stakeholders are urging Abubakar Malami as the nation’s chief law officer to mandate the force to comply with the courts’ decisions, Alex Enumah writes

Recently, the Court of Appeal in Abuja affirmed a court judgment reinstating Colonel Danladi Hassan, who was compulsorily retired alongside 37 other senior officers in 2016.

A three-man panel of the appellate court dismissed the appeal filed against the lower court’s judgment by the Nigerian Army authorities.

The National Industrial Court (NIC) in Abuja had in its judgment delivered on January 9, 2019 ordered the reinstatement of Colonel Hassan, who was wrongfully retired compulsorily in 2016.

The trial judge, Justice Sanusi Kado, had held that the Nigerian Army failed to convince the court about the disciplinary grounds for the compulsory retirement of the claimant. He consequently declared the letter of compulsory retirement null and void and of no effect.

Rather than comply with the industrial court’s verdict, the army authorities, including the Nigerian Army itself, the Nigerian Army Council, the Chief of Army Staff, the Armed Forces Council, and others opted to appeal against the decision.

However, dismissing the appeal and affirming the industrial court’s decision, Justice Stephen Adah, who read the lead judgment of the three-man panel of the Court of Appeal, held that the appellants’ case lacked merit.

The Court of Appeal held that the appellants failed to justify their claim that the lower court’s verdict was perverse. The findings of the court showed that the lower court’s decision was based on the evidence presented before it by parties, Justice Adah said.

The court also dismissed the technical argument of the appellants that Hassan’s case before the lower court was incompetent. It held that contrary to the appellants’ claim, Hassan complied with the condition precedent as required under Section 178 of the Armed Forces Act, before approaching the court.

“The lower court had elaborate consideration of all the facts, both from the accusers, the accused person and their witnesses before coming to the conclusion that the exercise of compulsory retirement was done in error.

“It was in that respect that the court now held that the compulsory retirement of the claimant was declared null and void; letter of compulsory retirement also set aside and he was ordered to be reinstated and a letter issued to that effect, reinstating him into

the Nigerian Army with all rights and privileges.

“There is no piece of evidence that is contrary to what the court has said. So, there is nothing that is perverse by the findings of the lower court,” Justice Adah said.

The Court of Appeal added that an appellate court would not interfere with the findings of the lower court where the lower court has made correct and straightforward findings of facts”.

“The trial court did excellently well in this case, and we have no need to interfere with the findings of the court. It is in this respect that we come to the conclusion that this appeal is lacking in merit. It is grossly lacking in merit, and it is hereby dismissed.

“The decision of the lower court is upheld and all the decisions made therein, are also sustained,” Justice Adah added.

The Court of Appeal’s judgment came about three weeks after the National Industrial Court ordered the reinstatement of Brigadier-General ASH Sa’ad who was one of the 38 officers affected.

Brigadier-General Saad along with 37 others was forced out of service without recourse to the rules of disengagement in the Nigerian military.

Most of the affected officers were neither queried nor indicted by any panel but got flushed out for reasons that smacked of high-level arbitrariness and witch-hunting by authorities of the army.

The officers, who were nine Major Generals, 10 Brigadier Generals, together with some Colonels and a major, had subsequently petitioned President Muhammadu Buhari, in line with the military’s rules to seek redress. But even after petitioning the president, five years later, their fates still hang in the balance.

So far, the courts have ordered the Army to reinstate seven of the officers who challenged their compulsory retirement.

On August 6, 2014, the 25 Task Force Brigade led by Hassan carried out a special operation and recaptured the earlier seized towns of Bulabulin and Damboa from the Boko Haram terrorists. He was the Commander of the 7 Division Garrison responsible for the security of Maiduguri and its environs before he was directed to lead the operation.

Colonel Hassan was among the 38 senior officers of the Nigerian Army who woke up on June 9, 2016 to the shocking news of their compulsory retirement. The then Army spokesman, Brig. Gen S.K. Usman had declared that the officers were compulsorily retired on “disciplinary grounds, serious offences.’’

The alleged “serious offences” were said to include: partisanship during the general election of 2015, involvement in arms procurement fraud and jeopardising national security.

The then Minister of Defence, Brig. Gen Mansur Dan-Alli (rtd) and the former Chief of Army Staff, Lt. Gen. Tukur Buratai himself, corroborated Usman’s statement, alleging further that due process and fair hearing were granted to all the officers and were found guilty by a competent legal procedure.

However, it did not take long for Nigerians to know that none of the 38 officers was queried, charged, tried or found guilty of any offence, let alone even appearing before any court martial.

Several of the officers who felt the Army breached its extant rules and regulations in carrying out the retirements took their grievances to the courts to clear their names. This was after they had appealed to President Buhari for his intervention and reinstatement, but no response from the presidency or the army.

Minister of Justice and Attorney General of the Federation (AGF), Abubakar Malami

Seven of the officers have since won their cases in courts which ordered their reinstatement into the Force. Added to these seven are another two officers who obtained National Assembly resolutions ordering their reinstatement.

Some of the officers who are still in their 40s are hoping that the Army authorities would carefully look into their cases in the interest of justice in order to continue to offer their military service to the country.

Curiously, before he retired, Buratai disregarded the judgments of the courts and the resolutions of the National Assembly. This has worsened the unenviable poor human rights record of the Nigerian Army.

For instance, in delivering his judgment on February 5, 2020 in Col M. A. Sulaiman v Nigerian Army and others, Justice Sanusi Kado corroborated the officers’ arguments by stating that: “The compulsory retirement of the claimant (Col MA Sulaiman), is hereby declared null and void and of no effect whatsoever, as it was not done in line with the extant rules and regulations.”

Other judgments followed a similar pattern with the judges denouncing the actions of the Nigerian Army against the embattled officers and ordering their immediate reinstatement, promotion and payment of all their entitlements.

To further validate the claims that the officers were perhaps innocent of the allegations the Army must have based its action on, it was reported that several of them were not even in Nigeria when they were compulsorily retired without fair hearing.

For instance, Lt. Col. Thomas Arigbe was a Directing Staff on a two-year Exchange Programme with the Ghana Armed Forces at the Ghana Armed Forces Command and Staff College, while another, Col MA Suleiman, a national merit award winner for the safe rescue of several foreign hostages, was in Chad as military attache where his experience fighting the insurgents was being utilised.

“The AGF, Malami just has to sound a strong note of warning to the Nigerian Army. He also needs to let it know in clear terms that it cannot continue to be above the law of the land. It has to obey the judgments of the courts. He equally needs to let the Army know that it is ridiculing the courts by not obeying its decisions and this is sending a dangerous message across”

THISDAY gathered that the immediate-past Chief of Army Staff (COAS), Lt. Gen. Ibrahim Attahiru, was on the verge of acting on the impasse before he died with other senior army officers in a plane crash, in May 2021.

Investigations by THISDAY revealed that due to public perception that injustices were meted out to the officers, the incumbent Chief of Defence Staff (CDS), General Lucky Irabor recently called on the military authorities to obey the court judgments in favour of the officers and grant them voluntary retirement.

Irabor made the request in a letter he wrote to the Minister of Defence, Maj. Gen. Bashir Salihi Magashi (rtd) to revisit the issues surrounding the “arbitrary” retirement of the officers.

His action was based on a series of letters by the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), to resolve the impasse.

On February 15, 2021, Malami had through the Solicitor General of the Federation and Permanent Secretary, Federal Ministry of Justice, written another letter seeking an explanation on the matter from the then CDS, Gen. Olonisakin (rtd).

In the letter, Malami reminded the CDS that he was yet to receive any response for the initial letter he had sent, in order for him to advise Mr. President appropriately.

When Irabor assumed office as CDS, he then replied to the Attorney General through the Minister of Defence, Magashi on the issue.

Even though the CDS clearly admitted that the procedures followed by the Army in retiring the officers were improper and arbitrary, observers feel that his recommendation that all the 38 officers should be voluntarily retired with effect from January 1, 2018 was not proper because it will amount to double jeopardy by denying the affected officers justice as well as truncating their careers prematurely.

With the Army exhausting its appeal on the judgments in favour of the officers, stakeholders are urging the Attorney-General of Federation and Minister of Justice, Abubakar Malami, in his capacity as the chief law officer of the country to compel the Force to comply with the decisions in the interest of justice and fairness; the same way he swiftly compelled the Lagos State Government to obey the Supreme Court judgment in the lingering legal battle between Magodo Estate residents and landlords’ association recently.

“The AGF, Malami just has to sound a strong note of warning to the Nigerian Army. He also needs to let it know in clear terms that it cannot continue to be above the law of the land. It has to obey the judgments of the courts. He equally needs to let the Army know that it is ridiculing the courts by not obeying its decisions and this is sending a dangerous message across,” said one of the sympathisers of the retired soldiers.

Credits | THISDAY

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