CORAM

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PARTIES

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LT COL. A. AKINWALE APPELLANTS

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NIGERIAN ARMY RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

SUMMARY OF FACTS
The Appellant was arraigned before a General Court Martial on a 4 count charge for being in unlawful possession of military property. At the trial, the Appellant pleaded guilty to the charges and was convicted by the Trial Court and sentenced to 15 years imprisonment while the confirming authorities of Court Martial reduced the sentence to 10 years to run concurrently. Dissatisfied with the Court’s judgment, the Appellant appealed to Court of Appeal on the ground that he was not given fair hearing.

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HELD

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Appeal allowed.

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ISSUES

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Whether the appellant was accorded and afforded fair hearing in the trial convened by the Commander, Lagos Garrison Command progressing through the process of hearing before the General Court Martial, the confirmation and promulgation of sentence.Whether the Commander, Lagos Garrison Command can be the initiator of investigations into the wrongdoing alleged to have been committed by the appellant, the convener of the General Court Martial and also the confirming authority within the contemplation of section 33(1) of the Constitution of the Federal Republic of Nigeria, which guarantees fair hearing.Whether due process of law was complied with having regard to the fact that the General Court Martial that tried the appellant delivered its sentence on 16th August 1996 same was confirmed on 16th August, 1996 on the same day and was promulgated on 16th August, 1996.Whether having regard to the fact that the appellant’s 40 choice of counsel was limited only to serving military officers and was not afforded the opportunity of choosing counsel of his choice (not only from the military but also from the civil society) his trial at the General Court Martial violated his right under section 33(6) (3) of the 45 Constitution.”

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RATIONES DECIDENDI

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TWIN PILLARS OF FAIR HEARING- PURPORT OF

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“Generally the twin pillars of fair hearing are the two latin maxims “nemo judex in causa sua”, interpreted as “you shall not be a Judge in your own cause.” The second maxim is “audi alteram partem” meaning, you shall hear both sides”. The first rule also embraces the notion that where there is a likelihood of bias on the part of the person sitting in judgment that particular person must not determine the case otherwise the judgment would be a nullity”. PER GALADIMA, JCARIGHT TO FAIR HEARING-SECTION 33(4) OF THE 1979 CONSTITUTION
“Section 33 (4) of the 1979 Constitution then applicable requires that any person charged with a criminal offence, shall unless the charge is withdrawn, be entitled to a fair hearing. PER GALADIMA, JCA INTERPRETATION OF SECTION 152 (A) OF ARMED FORCES DECREE 105 OF 1993-WHETHER THE CONVENING OFFICER CAN ACT AS A CONFIRMING AUTHORITY
Section 152 (2) of the AFD provides as follows: “The following shall not confirm the finding or sentence of a court martial, that is(a)An officer who was a member of the court martial; or(b)A person who, as commanding officer of the accused, LJ investigated the allegation against him or who is for the time being the commanding officer of the accused; or(c) A person who as appropriate superior authority, investigated allegations against the accused.”

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PROCEEDINGS OF GENERAL COURT MARTIAL-FEATURE OF

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“One peculiar feature of the proceedings of General Court Martial is that the act of confirmation and promulgation are integral to and are components of processes of investigation, the trial and delivery of the sentence. In every procedure adopted there ought to be fairness”.

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CASES CITED

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Adigun v. A. G. Of Oyo State (1987) 12 SC 118Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424.Tumba Garni v. The Nigerian Army Appeal No. CA/L/276/98 (unreported delivered on 29/1/2001).

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STATUTES REFERRED TO

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Armed forces decree 1993|Constitution of the Federal Republic of Nigeria 1979|

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