19 November 2018

Nigeria: How Nigerian Army Truncated Judgement for Unjustly Dismissed Officer

Despite refusing to argue its case and also refusing to call any witnesses, the Nigerian Army on Monday convinced the National Industrial Court to suspend judgement in an application by an officer challenging his dismissal in 2016 without fair hearing.

The court took the decision after Micheal Owolabi, the counsel for the Nigerian Army and Chief of Army Staff, Tukur Buratai, accused it of bias, just before judgement on the application by Ijeoma Nwokolo, one of many senior officers retired by the army without facing a disciplinary panel in 2016.

Story So Far

PREMIUM TIMES reported how many officers were unjustly dismissed without reasons and contrary to Nigerian army rules.

Due the retirement, Mr Nwokolo challenged the decision of the army, accusing it of violating his rights of employment and demanding reinstatement in line with an order of the National Industrial Court.

After the applicants closed their case in May, the defence team elected to rest its case on that of the applicants, refusing to open defence or call any witnesses.

Following that decision, the court adjourned till June to allow parties file their written addresses.

But while the applicant filed a final written address, the defence team, comprising the Nigerian Army, Minister of Defence, Chief of Defence Staff and the Chief of Army Staff refused to do same after three adjournments at their instance, said the applicant's lawyer Godwin Iyinbor on Monday.

Following the failure of the defence to produce its written address after the stipulated time, the judge, Judith Agbakoba, foreclosed the defence team, meaning that the court would no longer allow it to further delay judgement, which was expected to follow the submission of written addresses by parties.

After that decision of the court in October, the judge adjourned till November for judgement.

At the opening of session on Monday, however, the defence lawyer, Michael Owolabi, asked the judge to recuse herself, accusing Ms Agbakoba of bias over the decision of the court to foreclose the defence team in October.

Mr Owolabi drew the attention of the court to an application he said the defence had filed at the Appeal Court, which required that the matter before the industrial court be suspended.

He also said a petition had been written against the judge and sent to the President of the National Industrial Court.

"Justice is rooted in confidence, My Lord. One of the parties appearing before Your Lordship has lost confidence," Mr Owolabi said.

The lawyer further argued it would be in the interest of justice and fair play for the judge to hand over the matter, until the Industrial Court President transfers the case to another judge.

Mr Owolabi also asked for time to attend to their application for stay, if the court refuses to recuse herself from the matter

Applicant vehemently opposes request for stay and resignation of judge

Responding, Mr Iyinbor objected strongly to both applications, describing them as frivolous, vexatious and only intended to delay the proceedings of the court.

Mr Iyinbor said the rules of the industrial court allows for penalties to be awarded against applicants approaching the court with frivolous requests.

"The instant application is one of those applications regulated by order 38, rule 2 of this court, My Lord. It is frivolous and aimed at setting back the hands of time," the lawyer stated.

"Where a court finds that a counsel has made a request that is considered frivolous and vexatious, the court should consider the petition frivolous and in line with the rules of the court, strike out same with punitive cost on the applicants and the counsel."

Mr Iyinbor argued that the current stage of the matter did not allow for any unwarranted application by parties.

"When a matter has been adjourned for judgement, that application cannot be brought."

In reaction to Mr Iyinbor's request, Mr Owolabi raised an objection, saying Mr Iyinbor was already arguing what was contained in his counter affidavit before the court.

"My Lord, he is already arguing what he has written in his counter affidavit, My Lord."

After the objection, Mr Iyinbor changed his line of argument but continued with the objection.

"The first and fourth defendant, with all due respect , are in flagrant disobedience of the court, until they have complied they should not be heard."

Mr Iyinbor argued that the applicant delayed to serve them with the petition, dated October 30, till Monday November 19, in a deliberate attempt to delay the trial.

"He kept it, so as to prevent us from responding to this petition.

"The petition is addressed to the president of the court. It is not a process before the court. If the president has not given an order since it was served for something to be done, the court should discountenance it and proceed with the business of the day," Mr Iyinbor said.

The lawyer cited a Supreme Court judgement from 2018, to support his claim that Mr Owolabi's application ought not to be entertained.

"It is very important to note that the jurisdiction of the court to hear and determine a matter is invoked by the proper filing of the matter before the court.

"When a process is not duly filed before the court, the process in the eyes of the law does not exist before the court. It is an administrative process filed by the first and fourth defendant and it should not stop the proceedings of the day.

" We do not see any basis for this petition after the first and fourth defendant have appealed. It is approbating and reprobating. We are concerned to know our fate. We see the instant petition as an arrest of judgement," Mr Iyinbor argued.

In a final reply, usually allowed for only the instant applicant, Mr Owolabi responded to the arguments by Mr Iyinbor that the defence team was in flagrant disobedience of the court.

"When the order of court is appealed against, there is no such thing as disobedience when the order is not carried out. All we are saying is that whether an application is not proper or it is, we should be heard."

Ruling

In a brief ruling, Ms Agbakoba said the issue of bias raised against her was fundamental. She therefore announced her decision to hand over the matter to the president of the court.

Speaking after, Mr Owolabi confirmed the decision of the defence team to rest its case on that of the applicant's.

"The rules of this court allows us to rest our case on that of the defendant and that was what we did.

"If you are having a case in court and the opposing counsel feels that you have not said anything that will warrant him to present his witnesses, he can rest his case on yours," Mr Owolabi said.

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