“Dismissals Cannot Survive Unconditional Presidential Pardon” — Court Restores 70 Court-Martialled Soldiers To Service, Awards Salaries From July 2022

The National Industrial Court of Nigeria, sitting in Lagos, has ordered the immediate reinstatement of 70 Nigerian Army personnel who were convicted by courts-martial in 2014 but subsequently granted an unconditional presidential pardon by former President Muhammadu Buhari.

Justice S.A. Yelwa, in a landmark judgment delivered on July 20, 2026, held that the presidential pardon granted under Section 175 of the 1999 Constitution completely wiped out the soldiers’ convictions, sentences and consequential dismissals from the Nigerian Army.

The court consequently ordered the Chief of Army Staff to reinstate the soldiers with effect from July 18, 2022, being the date the presidential pardon became effective.

It also directed the Attorney-General of the Federation and the Chief of Army Staff to pay the soldiers all salaries, allowances and other emoluments accruing from July 18, 2022, until the date of their actual physical reinstatement.

The suit, marked NICN/LA/54/2023, was instituted by Corporal Andrew Ogolekwu and 69 other soldiers against the Attorney-General of the Federation and the Chief of Army Staff following the alleged failure of the military authorities to act on their demand for reinstatement.

The soldiers, represented by Falana & Falana Chambers, sought declarations that the presidential pardon had erased their convictions, sentences and dismissals.

They also asked the court to compel the Nigerian Army to reinstate them and pay their outstanding salaries and allowances from December 17, 2014.

The claimants were among Nigerian Army personnel tried before various courts-martial in 2014 for offences bordering on conspiracy and mutiny.

They were initially convicted and sentenced to death, but following an administrative review by the military authorities, their death sentences were commuted to 10 years’ imprisonment.

After serving their respective prison terms, former President Buhari exercised his constitutional prerogative of mercy and granted them an unconditional pardon.

The pardon was contained in the Instrument of Grant of Pardon, 2022, published in the Federal Republic of Nigeria Official Gazette No. 137, Volume 109, dated July 29, 2022.

Although the soldiers’ originating processes referred to April 28, 2022, as the date of the pardon, Justice Yelwa held that the Official Gazette established July 18, 2022, as the correct and effective date.

The judge noted that the Gazette expressly listed all 70 soldiers as beneficiaries of the unconditional pardon and constituted conclusive official evidence of the exercise of the President’s constitutional power.

Following the pardon, the soldiers, through Falana & Falana Chambers, wrote to the Chief of Army Staff on November 7, 2022, demanding their immediate reinstatement and payment of outstanding salaries and allowances.

Army Headquarters acknowledged receipt of the letter on November 9, 2022, but allegedly failed to respond or take any action on the request.

The soldiers consequently approached the National Industrial Court in February 2023 to enforce what they described as the legal consequences of the presidential pardon.

Counsel to the claimants, Funmi Falana, SAN, leading Chukwuma Onwuemene, argued that the unconditional pardon extinguished every legal consequence arising from the courts-martial convictions, including the soldiers’ dismissal from service.

Falana relied on Section 175 of the Constitution and several Nigerian, English and American judicial authorities to argue that a full pardon transforms its beneficiaries into “new men” in the eyes of the law.

She maintained that the pardon restored all rights, privileges and legal capacities forfeited by reason of the convictions.

The claimants argued that their dismissals were not separate administrative punishments but direct consequences of their convictions by the courts-martial.

They submitted that once the convictions and sentences were wiped out by the presidential pardon, the legal foundation supporting their dismissals also ceased to exist.

They therefore urged the court to order their immediate reinstatement and direct the defendants to pay all salaries and allowances they had lost from December 2014.

The Attorney-General of the Federation, represented by Mrs Omobolanle Aina, opposed the soldiers’ claims.

The Federal Government argued that although a presidential pardon forgives an offence and removes certain legal disabilities, it does not erase the historical fact that the beneficiary was previously convicted.

Aina further submitted that reinstatement into employment does not automatically arise from a presidential pardon but remains subject to the applicable service rules and administrative procedures governing the employer.

She also argued that the soldiers could not be paid salaries for periods during which they neither worked nor rendered any service to the Nigerian Army.

The Chief of Army Staff, however, neither entered an appearance nor filed any defence or counter-affidavit throughout the proceedings.

Justice Yelwa held that the failure of the Chief of Army Staff to challenge the evidence presented by the soldiers left their assertions concerning their demand for reinstatement substantially uncontroverted.

The judge found that the 70 claimants were validly granted an absolute and unconditional presidential pardon under Section 175 of the Constitution.

According to the court, the constitutional effect of a full pardon goes beyond merely excusing punishment, as it removes the guilt, infamy, penalties, forfeitures and legal disabilities attached to the conviction.

Justice Yelwa held that an absolute pardon returns its beneficiary to the position of a “new man” before the law and restores rights and privileges lost because of the conviction.

The court rejected the Federal Government’s argument that the soldiers’ dismissals could continue to operate despite the presidential pardon.

Justice Yelwa held that the dismissals were direct penal consequences of the courts-martial convictions and not independent administrative decisions taken by the Nigerian Army.

The judge stated that once the President exercised his constitutional prerogative of mercy, the convictions upon which the dismissals were based were completely obliterated.

According to the court, allowing the dismissals to remain effective after an unconditional presidential pardon would amount to subordinating the President’s constitutional power to an administrative decision of the military authorities.

“The Constitution is supreme,” the judge held, adding that the pardon completely wiped out the convictions, sentences and resultant dismissals.

Justice Yelwa, however, drew a distinction between the removal of the legal disability and the physical administrative process required to return the soldiers to active service.

The court held that although reinstatement required administrative action by the Nigerian Army and the Army Council, the pardon had given the soldiers a clear and enforceable right to be restored to service.

The judge described the Chief of Army Staff’s failure to act on the demand received on November 9, 2022, as an administrative omission capable of being corrected by the court.

On the claim for outstanding salaries, the court declined to grant the soldiers’ request for salaries and allowances covering December 17, 2014, to July 17, 2022.

Justice Yelwa held that although the pardon erased the legal consequences of the convictions, it did not retrospectively create a right to salaries for years during which the soldiers were incarcerated and did not perform military duties.

The court observed that the Instrument of Grant of Pardon contained no provision directing that the beneficiaries should be paid retrospective salaries.

It also found that the soldiers failed to present their individual enlistment letters, conditions of service or any contractual provision establishing their entitlement to salaries for the period of incarceration and dismissal.

Justice Yelwa held that granting salaries for eight years of service not rendered would amount to conferring a financial benefit not contemplated by the presidential pardon.

The court consequently ruled that the soldiers’ entitlement to salaries, allowances and other emoluments could only begin from July 18, 2022, when the pardon removed the legal barrier preventing them from serving in the Army.

In its final orders, the court declared that the unconditional pardon completely wiped out the soldiers’ convictions, sentences and dismissals from the Nigerian Army.

It further declared that they were legally entitled to be reinstated because the basis of their dismissal had been obliterated.

Justice Yelwa ordered the Chief of Army Staff to immediately reinstate all 70 soldiers with effect from July 18, 2022.

The defendants were also directed to pay the soldiers all salaries, emoluments and allowances due to them from July 18, 2022, until their actual physical reinstatement.

However, the claim for salaries and allowances covering December 17, 2014, to July 17, 2022, was dismissed, while the court made no order as to costs.

The post “Dismissals Cannot Survive Unconditional Presidential Pardon” — Court Restores 70 Court-Martialled Soldiers To Service, Awards Salaries From July 2022 appeared first on TheNigeriaLawyer.