Wing Commander Yusuf Garba Mshelia V. Nigerian Air Force & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Federal High Court Abuja, delivered on the 3rd of November 2011. The Appellant herein, was the plaintiff at the Federal High court Abuja and commenced the action by means of an originating summons praying for –

(a) A declaration that the letter of compulsory retirement dated August 1999 is null, void and unconstitutional as there exists no publication in any gazette authorizing and/or delegating G. O. Udokhai to act in that behalf.

(b) A declaration that the said letter of compulsory retirement dated August 1999 is void, null and unconstitutional as it was issued contrary to the conditions of service as contained in the Executive Regulations for the Nigerian Air Force, made pursuant to the Nigeria air Force Act.

(c) A declaration that the continuous failure of the defendants to investigate the plaintiff’s complaints as required by the provision of Section 128 of the Air Force Act Cap 15 Laws of the Federation of Nigeria 1990 amounts to a denial of his fundamental human rights to fair hearing and justice.

(d) An Order setting aside the said letter of compulsory retirement dated August 1999.

(e) A consequential order reinstating the plaintiff as an officer in the Nigerian Air Force on next rank of Group Captain of the Nigerian Air Force with the payment of all his outstanding salaries and entitlements till date.

The Respondents herein, were the defendants at the lower court and they filed a counter-affidavit. They also filed a Preliminary Objection against the hearing of the Suit for being statute-barred, pursuant to section 2(a) of the Public officers Protection Act. After considering the Originating Summons, the affidavits and counter-affidavits filed and the Preliminary Objection, the trial court held that the suit was statute-barred and struck it out. The plaintiff was dissatisfied and so filed this appeal.

The facts in brief, are that the appellant was compulsorily retired from the services of the Nigerian Air Force via a letter dated August 1999, signed by Group Captain G. O. Udokhai, for the Chief of Air Staff. Being aggrieved, the appellant wrote a letter seeking for redress, to the 2nd respondent, in pursuance of section 128(1) and (2) of the Air force Act, now section 178(1) – (5) of the Armed Forces Act, 2004. The 2nd respondent has not, uptil today, responded to the letter for redress. The appellant therefore took the matter to court.

The Issues for determination, identified by learned counsel for the appellant, Mrs. Lydia Ejeh, in the appellant’s brief filed on the 27/4/12, are –

(i) Whether the Appellant’s/Plaintiff’s action is statute barred?

(ii) Whether section 2(a) of the Public Officers Protection Act is applicable to contract of Military service/service employment.

The Respondent’s brief was settled by R. C. Osaji and it was filed on the 5/7/13. The Issues identified, are –

(1) Whether the Appellant’s/Plaintiff’s action is statute barred.