Captain Y. U. Zakari V. Nigerian Army & Anor

Supreme Court – May 22nd, 2015
Legalpedia Electronic Citation: LER[2015]SC 456/2012

Areas of Law:
APPEAL, COURT, JURISDICTION, PRACTICE AND PROCEDURE

Summary of Facts
The Appellant while serving in the Nigerian Army was appointed Chairman of Task Force and deployed to Iponri NITEL Exchange for investigation on the allegation that certain NITEL lines were used for illegal businesses. The Appellant consequently arrested a staff of Chayoma Ventures for interrogation who was subsequently handed over to one Mr. Odibo Isaac for further investigation of the Company’s file. The sum of N40,000(Forty Thousand Naira) was handed over to the Appellant by Mr. Odibo Isaac from the Managing Director of Chayoma Ventures which the Appellant considered as an appreciation for carrying out the investigation but the Nigerian Army thought otherwise saying the money was given as gratification for the release of the arrested staff of the said company, consequent upon which the Court Martial charged , convicted and sentenced to two years imprisonment, the Appellant on a one count charge of conduct prejudicial to service discipline.

Dissatisfied with the conviction and sentence by the Court Martial, the Appellant appealed to the Court of Appeal on the ground that the trial Court Martial lacked jurisdiction to try him as it was not properly constituted. The lower court dismissed the appeal. Further dissatisfied, the Appellant has lodged the instant appeal.
Held
Appeal Allowed

Issue for Determination
Whether the Court below was right in dismissing the Appellant’s appeal for lacking in merit?

Rationes
EFFECT OF THE DISQUALIFICATION OF A MEMBER OF A PANEL OR COURT – THE DISQUALIFICATION OF MEMBER OF A PANEL OR COURT RENDERS THE ENTIRE PROCEEDINGS BY THAT PANEL INCOMPETENT AND WITHOUT JURISDICTION
“Once a member is disqualified and the Panel or Court goes on with the proceedings, everything done by that Court would collapse as the disqualification of anyone or more members renders the entire court incompetent and without jurisdiction.Section 133 of the Armed Forces Act so provided and the cases of Madukolu v Nkemdilim (supra); Agbiti v Nigerian Army (supra)have ensured the mandatoriness of the compliance and not those defects that are redeemable or could be waived or treated as a mere irregularity not going to the root”. PER M. U. PETER-ODILI, J.S.C

ISSUE – DUTY OF THE JUDGE TO RAISE AN ISSUE SUO MOTU IF PARTIES FAIL TO DRAW THE COURT’S ATTENTION TO IT
“When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the court, it is the duty of the judge or Justice to raise the issue suo motu if the parties fail to draw the court’s attention to it.” See; Odiase Vs. Agbo(1972) 1 All WLR (Pt. l) 170 Prof. Olutola Vs. University of Ilorin(2004) 9-12 SCM (Pt.2) 169.” PER O. ARIWOOLA, J.S.C

COMPETENCE OF COURT –INGREDIENTS THAT DETERMINES THE COMPETENCE OF A COURT – EFFECT OF A DEFECT IN COMPETENCE
“The issue of when a court is competent had long been settled and it is now trite law that a court is only competent to adjudicate on a matter when:-
(i) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
i. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and
ii. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.” See; Madukolu & Ors Vs Nkemdilim(1962) 2 SCNLR 341 at 348; (1962) 1 All IMLR (Pt.4) 587 at 595,”PER O. ARIWOOLA, J.S.C

COMPOSITION AND CONSTITUTION OF THE MEMBERS OF COURT MARTIAL – THE PROCEEDINGS OF A COURT MARTIAL NOT PROPERLY CONSTITUTED AS REQUIRED BY THE ARMED FORCES ACT IS A NULLITY
“On the composition and constitution of the members of Court Martial, this court has held that any court Martial which is not constituted as required by the provisions of the Armed Forces Decree is just like a court or a tribunal which is not properly constituted whose proceedings or trial conducted is a complete nullity ab initio. See; The State Vs. Olatunji (2003) 14 NWLR (Pt. 839) 138; (2003) 20 WRN 75”. PER O. ARIWOOLA, J.S.C

JURISDICTION – IMPORTANCE OF JURISDICTION
“Jurisdiction is stated to be the blood that gives life to the survival of an action in a court of law without which the action, being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See; Utih & ors V. Onoyivwe & ors(1991) LPELR-3436 (Sc) and Usman V. Umazu (1992) LPELR-3432(Sc).”PER M.D. MUHAMMAD, J.S.C

JURISDICTION OF A COURT – JURISDICTION OF A COURT IS CONFERRED BY STATUTE
“It is trite that jurisdiction of a court is conferred by statute and a court lawfully exercises jurisdiction in relation to an action before it if certain conditions deducible from the enabling statute are conjunctively met. See; Olutola V. Unilorin (2004) 18 NWLR (Pt 905) 416 and S.P.D.C.N V. Nwaka(2003) 6 NWLR (Pt 815) 184..”PER M.D. MUHAMMAD, J.S.C

EFFECT OF LACK OF COMPETENCE ON PROCEEDINGS – ANY PROCEEDINGS OF A COURT THAT IS LACKING IN COMPETENCE IS A NULLITY
“The law remains that any proceedings of a court that is lacking in competence comes to naught.”PER M.D. MUHAMMAD, J.S.C

EFFECT OF A DEFECT IN THE CONSTITUTION OF A COURT MARTIAL – A DEFECT IN THE CONSTITUTION OF A COURT MARTIAL NEGATES THE EXERCISE OF THE JURISDICTION
“Any defect in the constitution of the court martial as required by Section 133(7) of the Act
negates the exercise of the jurisdiction conferred in the court martial by Section 129(b). See; Oloriegbe V. Omotosho (1993) 1 NWLR (Pt 270) 386 and Madukolu & ors V. Nkemdilim (supra).” PER M.D. MUHAMMAD, J.S.C

ISSUE – AN ISSUE NOT RAISED IN THE TRIAL COURT CAN BE RAISED WITH THE LEAVE OF AN APPELLATE COURT BUT AN ISSUE CHALLENGING THE JURISDICTION OF A COURT CAN BE RAISED WITHOUT LEAVE OF COURT
“However, an issue not raised and dealt with in the trial Court can be raised with leave of an appellate Court, and when the issue is a challenge to the jurisdiction of the trial Court; it can be raised even without leave of Court. See Onik Motors v. Wema Bank (1983) 6 SC 158, Western Steel Works Ltd v. Iron & Steel Works Union (1986) 2 NSCC 786 at 798 .This is so because a judgment delivered without jurisdiction is a nullity. See National Bank v. Soyoye (1977) 5 SC 181, Ndeayo v. Ogunnaya(1977) 1 SC 11.”PER N.S.NGWUTA, J.S.C

LACK OF JURISDICTION – JURISDICTION CANNOT BE ACQUIRED BY ACQUIESCENCE OF ANY PARTY WHERE A COURT LACKS SAME
“Where a Court has no jurisdiction, it cannot acquire same by acquiescence of any party nor can a party, by failure to exercise a right open to him donate jurisdiction to the court”. PER N.S.NGWUTA, J.S.C

JURISDICTION – JURISDICTION CANNOT BE ACQUIRED BY OR DONATED TO A COURT
“Where jurisdiction is not conferred by statute, it cannot be acquired by, or donated to, a Court”. PER N.S.NGWUTA, J.S.C

CONSTITUTION OF A COURT – A COURT LOSES ITS COMPETENCE WHERE IT ADMITS AN ADDITIONAL MEMBER NOT QUALIFIED TO SIT AS A MEMBER
“If a Court, properly constituted by way of membership, brings in an additional member who is not qualified to sit, it loses its competence to adjudicate because its composition has changed resulting in a change of the number and qualification of the membership. See Madukolu v. Nkemdilim (1962) 1 All NLR 587, Osbilinginga v. Okudo (1979) 6-9 SC 32.” PER N.S.NGWUTA, J.S.C

Statute Referred to
Armed Forces Act Cap A 20 Laws of the Federation 2004.

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