‘Ex’-capt Charles C. Ekeagwu V. The Nigerian Army & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Abuja, in appeal No. CA/A/43/904 delivered on the 12th day of January, 2006 in which the court dismissed the appeal of the appellant against the judgment of the Federal High Court, Holden at Abuja, in suit No. FHC/ABJ/CS/28601 delivered on the 8th day of January, 2004 dismissing the action of the appellant on the ground that the plea of res judicata set up by the respondents, then defendants, availed the said defendants.

The reliefs claimed by the appellant in the suit in question are as follows:-

“(1) A declaration that the compulsory retirement of the plaintiff by the 1st defendant through a letter (ref NA/278/1/A) dated 18/6/01 is illegal, null and void, as it was based on a criterium that never existed.

(2) An order reinstating the plaintiff as a Captain of the Nigerian Army and directing an accelerated promotion of the plaintiff to the rank of a full colonel or any other rank that he would have attained if the 1st defendant had not stagnated his growth in the Nigerian Army.

ALTERNATIVELY

N130,000,000.00 (one hundred and thirty million naira) being general damages against the defendants for loss of expectation in the plaintiff’s chosen career as a result of the illegal action of the defendants, and the training and psychological torture suffered by the plaintiff as a result of the illegal action of the defendants.

(3)N10, 000,000. 00 (Ten Million Naira) being cost of all legal services and actions taken by the plaintiff from 1994 till date.”

The facts of the case are simple and straight forward. They include the fact that appellant was a Captain in the Nigerian Army haven been commissioned on the 19th day of December, 1980. In January, 1988 appellant was posted to Artillery Division of the Army, the finance office therein, as the cashier until the Division was disbanded in December 1989 resulting in the appellant being posted to 15 Mechanised Brigade, Yola as the Brigade Finance Officer from January 1990.

In June, 1990 appellant was requested by signal to report to the Directorate of Military Intelligence, Lagos in connection with an alleged missing N9,000,000.00 (Nine million Naira) from the account of the disbanded Artillery Division with the Central Bank of Nigeria between April and May, 1990, after the appellant had left the said Division. As a result of investigation, appellant and others were charged to a Special Military Tribunal on Recovery of Public Property which acquitted and discharged the appellant on the 30th day of July, 1993. A copy of the judgment of the said Tribunal was forwarded to Army Headquarters as a result of which by a letter referenced (NA/218/DLS) dated 28th February, 1994, the appellant was recommended for redeployment which eventually came by a letter referenced NA/217/A dated 16th September, 1994. However, on the 31st day of October, 1994, appellant was by a letter referenced as NA/226/MS dismissed from the services of the Nigerian Army resulting in the appellant instituting suit No. FHC/L/CS/492/98 by virtue of which the dismissal was declared null and void and appellant reinstated and ordered to be paid his backlog of salaries etc.

However, by a letter dated 18th June, 2001 and referenced as NA/278/A appellant was compulsorily retired from the Nigerian Army culminating in the institution of the suit resulting in the instant further appeal.

It is the case of the respondents that appellant was duly paid his retirement benefits which he accepted. In paragraph 12 of the Statement of Defence, at page 57 of the record, the defendants/respondents pleaded estoppel as follows:-

“12. The Defendants aver that since the plaintiff has been paid all his entitlement pursuant to a court judgment, he is estopped from further suing the Defendants on the same cause of action of losing his job and rank in the Army.”

Again, the respondents pleaded in paragraph 13 of the statement of Defence as follows:-