The National Industrial Court in Abuja has nullified the compulsory retirement of a Nigerian Army colonel, Danladi Hassan.
The judge, Sanusi Kado, declared the letter written by the army on the retirement of Mr Hassan as null and void and ordered that all his rights and privileges be given accordingly.
The Nigerian Army compulsorily retired Mr Hassan on June 9, 2016. He had served as an instructor, staff officer, and commander in the field before he was controversially disengaged with 39 other officers.
The officers were dismissed without facing a panel and have all been challenging their fate in court, citing injustice, neglect of due process, and negation of fair hearing.
Mr Hassan in his suit asked the court to void his compulsory retirement and to order the army to reinstate and pay him compensatory and exemplary damages to the tune of N1 billion.
The suit with No: NICN/ABJ/316/2017 has Mr Hassan as the claimant.
The defendants were the Nigerian Army Council, Chief of Army Staff, Armed Forces Council, Chief of Defence Staff, Attorney-General of the Federation, Minister of Defence, and Mohammed Hong Garba, a major-general.
Mr Hassan sought, among others, a declaratory order that his compulsory retirement “constitutes/constituted an unfair and or wrongful dismissal and therefore wrongful, unlawful, illegal, unconstitutional, invalid and contrary to the Armed Forces of Nigeria Harmonized Terms and Conditions of Service for Officers 2012.”
He asked the court to set aside the purported letter of compulsory retirement “for being unlawful, invalid, unconstitutional, void and of no effect whatsoever.”
Mr Hassan also asked for an order of the court directing his “immediate reinstatement to his statutory protected employment or service in the Nigerian Army and which reinstatement is to be made effective from June 9, 2016, with all of his rights and entitlements.”
The defendants had told the court that the Armed Forces Oaths of Allegiance stipulate that the claimant will serve for 18 years and if a need arises, will apply for an extension. They said the claimant not following this rule was a serious offence.
According to the defendants, the Armed Forces Act “provides for the administration and that is not limited to the description which is not true that an officer of the rank of colonel cannot be retired without going through the disciplinary procedure.”
The defendants urged the court to determine whether the claimant established by the preponderance of the evidence that his employment with the Nigerian Army is for 35years, or whether he established evidence that his employment with the army was for 18 years in the first instance.
Also, the defendants wanted the court to determine whether the claimant has overstayed his tenure or whether he is entitled to the reliefs sought.
According to the defendants, the period of employment for Mr Hassan was validly determined, hence his retirement was not illegal.
After an analysis of all the processes filed, and the submissions of the counsel from both sides, the presiding Judge, Sanusi Kado, in his judgment declared the letter of the army null and void and thereby nullified the compulsory retirement of Mr Hassan.
“The defendants have not referred the court to any of the provisions of the Armed Forces Act or the harmonised Terms and Condition of Service for Officers 2012, (Revised), where overstaying or serving beyond 18 years in the military was made to be a disciplinary, i.e serious, offence.
“The defendants seem to be under the impression that the claimant having served for 26 years, the contract of service has elapsed as at the time the claimant served for 18 years and they are acting under the assumption that the claimant is no longer entitled to be in service. The defendants may have taken the position they have taken based on their own interpretation of section 30 of the Armed Forces Act.
“In view of lack of credible evidence to prove non-application for re-engagement, I prefer the version given by the claimant to the effect that he applied for re-engagement and same was granted.”
Mr Kado said the defendant’s inability to prove to the court their allegations made the retirement letter null and void.
“The defendants have failed to convince the court of the disciplinary ground for compulsorily retiring the claimant, i.e serious offences, it is therefore null and void and of no effect.
“The letter of compulsory retirement having been issued not in line with Harmonised Terms and Conditions of Service for Officers 2012, (Revised), is not capable of retiring the claimant as it was issued in 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.
“In the circumstance, I hereby ordered reinstatement of the claimant back to his post with all his rights and privileges.”