The National Industrial Court of Nigeria (NICN), Lagos Division, has ordered the immediate reinstatement of 70 Nigerian Army personnel who were convicted by courts-martial in 2014 but were subsequently granted an unconditional presidential pardon by former President Muhammadu Buhari.
The court also directed the Nigerian Army to pay the soldiers all salaries, allowances and other emoluments accruing from July 18, 2022—the effective date of the presidential pardon—until the date of their actual reinstatement.
In a landmark judgment delivered by Justice S.A. Yelwa in Suit No. NICN/LA/54/2023, the court held that the unconditional pardon granted under Section 175 of the 1999 Constitution completely extinguished the soldiers’ convictions, sentences and dismissals from service, restoring their legal status and entitling them to reinstatement.
However, the court declined the claimants’ request for salaries and allowances covering the period between December 17, 2014 and July 17, 2022, holding that they were not entitled to remuneration for the years they neither served nor performed official duties because they were serving prison terms.
The 70 soldiers had sued the Attorney-General of the Federation (AGF) and the Chief of Army Staff (COAS), alleging that despite receiving an unconditional presidential pardon, the military authorities failed to act on their request for reinstatement.
Represented by Falana & Falana Chambers, the claimants sought declarations that the presidential pardon nullified their convictions and dismissals, an order compelling their reinstatement into the Nigerian Army, and payment of all outstanding salaries and allowances from the date of their dismissal in December 2014.
The claimants were among military personnel convicted by various courts-martial in 2014 over offences bordering on conspiracy and mutiny. Although they were initially sentenced to death, their punishment was later commuted to 10 years’ imprisonment following an administrative review.
After serving their prison terms, they were granted an unconditional presidential pardon by Buhari through the Instrument of Grant of Pardon, 2022, issued pursuant to Section 175 of the Constitution and published in the Federal Republic of Nigeria Official Gazette.
Following the pardon, the soldiers, through their solicitors, wrote to the Chief of Army Staff on November 7, 2022, demanding reinstatement and payment of their outstanding salaries and allowances. Although Army Headquarters acknowledged receipt of the letter on November 9, 2022, no action was taken, prompting the institution of the suit.
Arguing for the claimants, senior advocate Funmi Falana, SAN, submitted that the presidential pardon extinguished every legal consequence of the convictions, including the soldiers’ dismissal from service.
She argued that since the dismissals were direct consequences of the courts-martial convictions, the constitutional pardon automatically removed the legal basis upon which the dismissals rested, thereby restoring the claimants’ employment rights.
The Attorney-General of the Federation, represented by Mrs. Omobolanle Aina, opposed the suit, contending that while a presidential pardon forgives an offence and restores civil rights, it does not erase the historical fact of conviction or automatically entitle beneficiaries to reinstatement under applicable service rules.
The Federal Government also argued that the soldiers could not claim salaries for periods during which they neither worked nor rendered service to the Nigerian Army.
The Chief of Army Staff neither entered an appearance nor filed any defence throughout the proceedings.
In resolving the issues, Justice Yelwa held that the documentary evidence before the court conclusively established that all 70 claimants were beneficiaries of the presidential pardon granted on July 18, 2022.
The court held that the Official Gazette constituted conclusive proof of the pardon and noted that the Chief of Army Staff failed to challenge the evidence or explain why the soldiers’ request for reinstatement was ignored.
Rejecting the Federal Government’s argument, the judge ruled that the dismissals were direct penal consequences of the courts-martial convictions and not independent administrative decisions.
According to the court, once the President exercised his constitutional prerogative of mercy under Section 175 of the Constitution, the legal foundation upon which the dismissals rested ceased to exist.
Justice Yelwa further held that permitting the dismissals to subsist despite the unconditional pardon would amount to subordinating the President’s constitutional powers to administrative actions of the military authorities.
The judge described the Army’s failure to act on the claimants’ request for reinstatement as an administrative omission amenable to judicial intervention.
On the claim for salary arrears, the court held that the presidential pardon did not retrospectively create an entitlement to salaries for the period the claimants were incarcerated, particularly as the Instrument of Grant of Pardon did not provide for such payments and the soldiers failed to establish any contractual or statutory basis for the claim.
Consequently, the court declared that the presidential pardon completely wiped out the claimants’ convictions, sentences and dismissals and that they were legally entitled to reinstatement into the Nigerian Army.
Justice Yelwa accordingly ordered the Chief of Army Staff to immediately reinstate the 70 soldiers with effect from July 18, 2022, and directed the defendants to pay all salaries, allowances and other emoluments due to them from that date until they are physically reinstated.
No order as to costs was made.
Wale Igbintade
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