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The Presiding Judge, Benin Judicial Division of the National Industrial Court, Hon. Justice Adunola Adewemimo has validated the dismissal of Lance Corporal Philip from the service of the Nigerian Army.
Justice Adewemimo ruled that Lance Corporal Philip's absence from duty for three years without permission was unjustifiable and in breach of the statute guiding his employment with the Nigerian Army.
From facts, the claimant- a Lance Corporal Philip had submitted that he was redeployed to Borno State and while on active duty, he developed a problem with his eye-sight, which he sought permission to treat himself thrice but was denied.
Lance Corporal Philip averred that while his condition deteriorated, he decided to travel to Benin City to seek treatment, and after he got better, he attempted to report back to duty but was disallowed.
Lance Corporal Philip alleged that his salary had been stopped since November 2020, and he was later arrested in Benin on suspicion of being a fake soldier and detained for several months. He further alleged that he was tried summarily in breach of his constitutional right to fair hearing for absence from duty without permission, and later released without any formal notification of his status in the Army.
Lance Corporal Philip also confirmed that during his 3 years' absence from duty, he called his commanding officer on the phone but was threatened not to come back or call him again.
In defence, the defendant- Nigerian Army submitted that a person subject to service law who absents himself without leave with intent to avoid serving at any place outside Nigeria or to avoid service or any particular service when before the enemy is guilty of an offence which attracts punishment of forfeiture of service or dismissal.
The Nigerian Army witness further admitted that the prescribed punishment for the claimant’s offence is imprisonment and any lesser punishment, which in this instance is a dismissal.
The defence counsel maintained that the Nigerian Army acted within the provisions of the Law and the dismissal of the claimant was lawful. Counsel urged the court to so hold.
In opposition, Lance Corporal Philip's counsel argued that the rule of fair hearing is not a technical doctrine but one of substance, and that the question is not whether justice has been done, but whether the opportunity for hearing has been afforded. Learned counsel maintained that the procedure adopted for trial, stoppage of his client's salaries, allowances and his purported dismissal is outside the law.
In a well-considered judgment, the presiding Judge, Justice Adunola Adewemimo held that Philip failed to cite any provision, law or policy of the Nigerian Army which allows a soldier to proceed on leave without permit after being denied thrice.
The Court ruled that Lance Corporal Philip's absence from duty without permission was unjustifiable and in breach of the statute governing his employment with the Nigerian Army.
Justice Adewemimo stated that Lance Corporal Philip failed to satisfy the court or justify his absence for three years without any written permission or compliance with the provisions of the Armed Forces Act.
The Court held that no provision in the A.F.A. justifies Lance Corporal Philip's absence; that the only fact that is deducible in the circumstances is abandonment of duty, which attracts summary dismissal.
Justice Adewemimo declared the allegation of a breach of the constitutional provision of fair hearing by Lance Corporal Philip after he had repudiated the contract of employment as absurd, and his contention that he was denied fair hearing and was not notified of the offence for which he was charged will not avail him.
“In line with the above expositions, I find that the admission of guilt for desertion by the claimant during his trial, coupled with abandonment of duty for three (3) years without a permit cannot be vitiated on the ground of lack of fair hearing, or breach of the statute guiding the employment relationship in the instant case.” The Court ruled.
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