Court nullifies compulsory retirement of officer by Nigerian Army

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.”

Again Ex-Accountant General, Otunla Absent in
Court

Justice Nnamdi Dimgba of a Federal High Court, Abuja, has again
adjourned the trial of a former Accountant-General of the
Federation, Jonah Otunla, to February 7, 2019. The adjournment is
consequent upon the absence of the defendant in court. The Court
however stressed that if he is again absent at the next adjourned
date, the Court will be compelled to hear the application of the
prosecution seeking for a warrant for his arrest.

Otunla is being prosecuted by the Economic and Financial Crimes
Commission, EFCC, on a five-count charge of money laundering
involving the diversion of about N2 billion from the account of the
Office of the National Security Adviser, ONSA.

He was to be arraigned on December 7, 2017 along with Ade
Adelakun, and seven other companies – Gold Reef Industries Limited,
Lambster Nigeria Limited, G.C. Electronic Limited, Sinmilak Nigeria
Limited, Wehsac Farms Limited, Shepherded Field Global Resources
Limited and Stellavera Development Company Limited, but his absence
stalled his arraignment.

The case was rescheduled to January 22, 2018, but yet again he
was absent in court, and though his counsel, Ahmed Raji, SAN,
represented him, his absence stalled his trial, as Adelakun who was
present in court, could not take his plea. Raji had told the Court
that his client was away “for medical treatment abroad”.

One of the counts reads: “That you, Jonah Ogunniyi Otunla being
the former Accountant General of the Federation and a Director and
signatory to the ECOBANK account of WEHSAC FARM LTD, Otunba Ade
Adelakun, being the Managing Director/Chief Executive officer and a
signatory to the accounts of Goldreef Industries Nigeria Limited,
Fidelity Bank, Lambster Nigeria Limited- Zenith Bank, G.C
Electronics Ltd – GTB and Sinmilak Nigeria Limited- Fidelity
Account, Col. Bello Fadile (now at large) being the former
Director, Special Duties in the office of the National Security
Adviser (ONSA) and also a Director and signatory to the accounts of
Helpline Organisation, sometime between June and August 2013, in
Abuja within the jurisdiction of this Honourable Court directly
converted the sum of N2,000,000,000 (Two Billion Naira) only
transferred to the accounts of Goldreef Industries Limited-Fidelity
Bank (N550 million), Lambster Nigeria Limited- Zenith Bank (N650
million), G.C Electronics Limited – GTB (N450 million) and Sinmilak
Nigeria Limited- Fidelity Account (N350 million) from the account
of the Office of the National Security Adviser with the Central
Bank of Nigeria purporting to be for the supply of security
equipments when you reasonably ought to have known that the said
fund formed part of the proceeds of an unlawful activity of Col.
Mohammed Sambo Dasuki (retd), the then National Security Adviser
(to wit: criminal breach of trust and corruption) and you thereby
committed an offence contrary to Section 15 (2)(b) of the Money
Laundering (Prohibition) Act, 2011 as amended in 2012 and
punishable under Section 15 (3) and (4) of the same Act”.

His absence also stalled his expected arraignment on April 30,
2018 prompting the prosecution led by Francis Jirbo, to file an ex
parte motion seeking for the issuance of a warrant of arrest
against Otunla.

Jirbo had argued that: “The first defendant (Otunla), having
jumped administrative bail has failed severally to appear before
the court. I hereby apply for a warrant of arrest to produce the
defendant and to be properly charged by this Honorable Court”.

Jirbo had also told the Court that the oath of warrant of
arrest, filed on March 1, 2018 was brought pursuant to Section 37
of the Administration of Criminal Justice Act, 2015. It disclosed
that “Otunla and Adelakun were investigated by the EFCC and had
responded by making statements in writing, while their accomplice,
Fadile, bolted out of the country and is currently said to be
living in the United Kingdom as a fugitive”.

At the resumed sitting, on January 15, 2019 again Otunla was
absent in Court, but a new twist was brought to the trial as the
Court was informed that Adelakun was dead.

However, the Court ordered the defendant to produce a death
certificate as evidence before the Court “or an affidavit of death
to be filed to authenticate the death”.

Tony Orilade
Ag. Head, Media & Publicity