The Hon. President of the National Industrial Court of Nigeria, His Lordship, Hon. Justice Benedict Kanyip, PhD has dismissed the objection filed by Nigerian Army and 4 others challenging the court jurisdiction over res judicata in a matter brought by Brigadier General Abubakar Sa’ad for lacking merit, ordered the hearing of the substantive case.

Justice Kanyip held that the Nigerian Army, Chief of Army Staff, and 3 others have not proved the requirements for a successful plea of res judicata, and further that ECOWAS court as a supranational court, not named and established under the 1999 Constitution is inapplicable for purposes of a plea of res judicata.

From facts, the claimant’s – Brigadier General Abubakar Sa’ad seeking among others for an order compelling the Nigerian Army to reinstate him as an officer of the Nigerian Army with all the rights and privileges; and the Nigerian Army and 4 others had filed a preliminary objection that the prerequisites for exercising jurisdiction by the Court under the Armed Forces Act were not fulfilled before the case was filed, the court upheld the objection and struck out the case.

In June 2020, the Court of Appeal set aside the ruling and remitted the case back to the Court for reassignment.

On the fresh start, the Nigerian Army filed another preliminary objection challenging the jurisdiction of the Court to entertain the suit on the grounds that Brigadier General Abubakar Sa’ad and 33 other former officers had instituted an action against the Federal Republic of Nigeria in 2017 before the ECOWAS Court of Justice on facts that are identical to the present action that the principle of estoppel res judicata prevents the claimant from reopening the issue that has already been determined by a court of competent jurisdiction, urged the court to strike out the case.

In opposition, the claimant’s contended that he neither consented to nor participated in the alleged suit before the ECOWAS Court and not named as a party to the suit.

He opined further that he has approached the Industrial Court, being the only Court with the vires and jurisdiction to entertain same, over one year before the alleged suit was filed at the ECOWAS Court for declarations of violations of rights, and for damages while his seeking for the nullification of his purported retirement, and his reinstatement that the ECOWAS Court is not a court of competent jurisdiction as the subject matter of the suit is concerned, that any purported exercise of such jurisdiction, which the ECOWAS Court does not have, will amount to an exercise in futility, urging the Court to so hold.

In reply, the defendants submitted that the claimant’s deposition that he neither consented nor participated in the suit at the ECOWAS Court is not only untrue, but a fabrication to mislead the Court that Industrial Court and the ECOWAS Court have concurrent jurisdiction to determine matters of fair hearing.

Delivering the ruling, the presiding Judge, Hon. Justice Benedict Kanyip held that the court does not feel bound by the decision of the ECOWAS Court for the twin reasons that the case in its regard was filed (in 2017) after the instant case was filed (in 2016); and not being a court established under section 6 of the 1999 Constitution, it is inapplicable for purposes of a plea of res judicata.

“I do not have an issue with the defendants’ argument as to the defendants in the instant case being agents of the Federal Republic of Nigeria, the defendant in the ECOWAS Court case. But I do with the argument that the claimant in the instant case is the same with the 14th claimant in the ECOWAS Court case. There is no evidence before this Court that “BRIG GEN ASH SAAD” is the same as “Brigadier General Abubakar Hanafi Sa’ad”.

“The ECOWAS Court made it clear that it is outside its remit to examine the substantive matter, which I read to mean the compulsory retirement; and that it will not invalidate national deliberations, which I read to mean the actions of the Nigerian Army in compulsorily retiring the applicants.”

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