The President of the National Industrial Court, His Lordship, Hon. Justice Benedict Kanyip, PhD has nullified the compulsory retirement of Captain Benedict Olusoji Akanni (Rtd) by the Nigerian Army through a letter dated 22nd June 2017, ordered the Nigerian Army to pay Captain Olusoji the sum of N75 Million only being general damages for loss of expectation in his chosen career, training and psychological trauma suffered as a result of the arbitrary and illegal action of the Army within 30 days.
The Court held that the refusal of the Nigerian Army to restore the claimant to his employment as ordered by the Court of Appeal shattered the claimant’s expectations that no party is allowed in law to pick and choose which part of a judgment or court order to comply with.
From facts, the claimant- Rtd. Captain Olusoji had submitted that he was commissioned as a Lieutenant and was promoted to the rank of a Captain in 1997, that being the Administrative Officer in charge of the store, an incident of theft occurred and was charged to the General Court Martial on counts of stealing and conspiracy to steal; acquitted on the allegations of stealing but found guilty of conspiracy to steal and as a result, he was demoted from the rank of Captain to Second Lieutenant, and compulsorily retired him with effect from 10th April 2000.
Furthermore, he approached the Court of Appeal for redress, and on 8th July 2016 in its judgment, Court of Appeal set aside the conviction, sentence, demotion of the rank of the claimant and also set aside the judgment of the General Court Martial, ordered that he should be reinstated into the Nigerian Army, restore his rank and also should not suffer any disadvantage in his seniority in the said rank as a result of the trial.
Furthermore, the 1st, 2nd and 3rd defendants disobeyed and disregarded the order of the Court of Appeal by restoring him merely to the rank of Captain and immediately compulsorily retired him with effect from 10th April 2000 without any further benefit that that he filed the action after series of attempts to ensure that the judgment was complied with.
In defence, 1st to 3rd defendants -the Nigerian Army, the Nigerian Army Council and Chief of Army Staff submitted that in obedience to the decision of the Court of Appeal, the Nigerian Army immediately restored to the claimant his rank as a Captain, gave the directive for payment of his entitlements and retired him from the Nigerian Army that the claimant has not placed anything, both in his pleadings and evidence before the Court, to establish how his compulsory retirement was “based on a criterion that never existed” that the claimant does not need any Court order to his entitlements as a Captain.
In reply, the claimant’s learned counsel submitted that that had the 1st to 3rd defendants obeyed the judgment of the Court of Appeal, the claimant would not suffer any disadvantage in rank that as it stands today, the claimant has remained stagnated in the rank of Captain since the year 1997 that it ought to have proceeded further on the strength of the Court of Appeal judgment and accelerated the promotion of the claimant to the rank of Brigadier as at 22nd June 2017 that claimant’s aspirations and wishes to serve the country have been truncated; and has been diligent in his quest to correct the wrong he has suffered from the defendants urged the court to grant the reliefs sought.
Learned Counsel to the defendants also averred that the use of the phrase “the said rank” is indicative of the fact that the Court of Appeal concerned itself with the issues for determination which did not include promotion to the rank of a Brigadier General. That it would, therefore, be in the interest of justice for the Court to align itself with the Court of Appeal in holding that promotion to the rank of Brigadier did not form part of the decision of the Appellate Court.
After careful evaluation of the submissions and arguments of both counsel, the presiding Judge, Justice Benedict Kanyip held that it’s wrong and unlawful for the defendants to choose to restore the rank of the claimant as Captain but not his employment as an officer of the Nigerian Army.
“By this act, the defendants chose a part of the decision of the Court of Appeal to comply with but not the other. No party (and that includes the defendants) is allowed in law to pick and choose which part of a judgment or court order to comply with.
On the prayer for accelerated promotion to full Brigadier, the Court held that other than the evidence of the 1st to 3rd defendant’s witness to the effect that promotion in the Army is done after being 5 years on a rank, there is no evidence before the Court as to the other parameters/requirements for promotion from the rank of Captain to any other higher rank, the Court cannot ascertain whether the claimant would have been qualified and so entitled to any promotion from the rank of Captain had he remained in actual employment of especially the 1st defendant.
“There is no gainsaying that the refusal of especially the 1st defendant to restore the claimant to his employment shattered the claimant’s expectations. And this Court has acknowledged in several cases that expectation interest is recoverable by an employee against his employer.
“The disobedience of the defendants to the Court of Appeal decision, which disobedience is the failure of the defendants to restore the claimant to his employment as an Officer of the 1st defendant must accordingly be recompensed especially in terms of the failed expectations of the claimant in that regard.
Lastly, the court dismissed other monetary claims on interest on entitlement benefits and legal fee for lack of proof.