The Presiding Judge, Enugu Judicial Division of the National Industrial Court, Hon. Justice Oluwakayode Arowosegbe has declared the purported dismissal of Stanley Iwezulu from the Nigeria Airforce without strict compliance with the Constitution of the Federal Republic, due adherence to the Armed Forces Act, Laws of the Federation, as null and void.
The Court granted an order converting the dismissal of Stanley Iwezulu from the enlistment of the Nigeria Airforce to discharge and ordered the Nigeria Airforce, Nigeria Air Council and Chief of Air Staff to calculate and pay Stanley’s arrears from the time his salary was stopped till October 2023.
Justice Arowosegbe ruled that the punishment of outright dismissal from service served on Stanley cannot be awarded by the CO for the offences of AWOL, ordered the Nigeria Airforce, Nigeria Air Council and Chief of Air Staff to pay Stanley Iwezulu gratuity and awarded the sum of N500,000 [Five Hundred Thousand Naira] only as cost.
From facts, the claimant- Stanley Iwezulu had submitted that his dismissal from service was done against the rule of law. He pleaded that, after release from detention, he opted for outside treatment and was made to sign a form for discharge against medical advice and obtained pass. That he subsequently applied for voluntary discharge from service in October 2016 but his two applications were to no avail.
He pleaded that his applications for pass in 2017 was denied and was declared AWOL for taking the liberty, in accordance with military tradition, to leave for urgent family matters, after three denials of pass. He pleaded that he was arraigned without being given time to prepare for his defence and was tried and found guilty and dismissed.
Counsel to Stanley, Chukweka Ode Esq argued that offences carrying dismissal could not be summarily tried, and the offence of AWOL could only be tried by court-martial and that, the purported agreement of the his client to the contrary is immaterial, urged the court to grant the reliefs sought.
In defence, the defendants- Nigeria Airforce, Nigeria Air Council and Chief of Air Staff counterpleaded that at the time Stanley Iwezulu applied for voluntary discharge, he was not qualified, while the grant of pass was not a right but a discretionary privilege. They counterpleaded that, Stanley was declared AWOL because he absented himself from duty without permission; summarily tried and dismissed.
Counsel to the defendants argued that Stanley’s case was premature as he ought to have petitioned his CO of his non-satisfaction with his trial, conviction and dismissal and, if not satisfied with the decision of the CO thereto, appeal to the Air Force, and urged the Court to decline jurisdiction.
In a well-considered judgment after careful analysis of the submission of both parties, the presiding Judge, Justice Arowosegbe dismissed the Air force objection and held that the ground of non-compliance with conditions precedent was not pleaded and raising the issue in the Final Address is improper because the rules of the Court abolished demurer.
The Court held that the CO appears to have discretion to choose the type of trial, but when s/he elects summary trial, s/he cannot impose sentences beyond those prescribed in the Armed Forces Act; and cannot impose a sentence of outright dismissal from service for the offences of AWOL.
“I also consider that prospective reinstatement is not feasible in the instant case because the claimant had indicated clearly his disinterest in the service. But since reinstatement is the normal order made, where dismissal is declared void in statutory employment, and the dismissal in the instant case, being void, and accordingly set aside, the claimant is hereby declared to have remained in service till the determination of this case.”
