Legalpedia Citation: (2010) Legalpedia (SC) 18913
In the Supreme Court of Nigeria
Fri Jan 29, 2010
Suit Number: SC. 243/2008
CORAM
OBASEKI CHIEF JUSTICE OF NIGERIA,
PARTIES
NIGERIAN ARMY APPELLANTS
BRIG. GEN. MAUDE AMINUN-KANO
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The respondent was charged and convicted by a court martial. His appeal to the court of appeal quashing the conviction was allowed. The appellant has appealed.
HELD
Appeal dismissed.
ISSUES
1. Whether having regard to the content of Exhibit P.45 and the circumstances of the case, the Court of Appeal was right when it held that the said Exhibit constituted a condonation of the offence committed by the respondent thus precluding the Appellant to Court Martial him.?
2. Whether the court below was right in holding that following the issuance of Exhibit P.45, proceedings against the Respondent at the Court-Martial amounted to double-jeopardy when that issue was never raised by any of the parties in the appeal before it. ?
RATIONES DECIDENDI
COMMANDING OFFICER IN THE NIGERIAN ARMY:MEANING.
“A “commanding officer” in the Nigerian Army has been defined to be, in relation to a person, “the officer commanding the unit to which the person belongs or is attached.” Per Muhammad, JSC.
PRACTICE OF COURT ON STATUTES OF THE SAME SUBJECT OF MATTER
“It is the general practice of the courts to read statutes on the same subject matter together.” Per Muhammad, JSC.
CONDONED OFFICER: CANNOT BE RETRIED FOR SAME OFFENCE.
“Any serving person or officer of the Nigerian Armed Forces who is subject to service law especially the prevailing law as is now contained in the Armed Forces Act, Cap A20 LFN, 2004; who has been alleged to have committed some crimes and has been condoned by his Commanding Officer, under the Act, cannot be subjected to double jeopardy by standing trial before a court or tribunal of whatever nature and howsoever”. Per Muhammad, JSC.
CONDONE OR CONDONATION.
“In law, however, the word “condone” or “condonation” which has several variants such as condonment, condonance, strictly speaking, has to do with matrimonial causes specially and it connotes the conditional remission or forgiveness, by means of continuance or resumption of marital cohabitation, by one of the married parties of a known matrimonial offence e.g. adultery, committed by the other, that would constitute a cause of divorce the condition being that the offence shall not be repeated”. Per Muhammad, JSC.
BAR TO PROSECUTION.
“Where a person accused of committing a criminal offence(s) which are recognized by law an where he has shown that he has either been pardoned of that offence(s) by the appropriate authority or that he has been tried by a court of law or a tribunal set up by law, then he cannot be subjected to any further trial by any court or tribunal on that same offence(s). A bar to further prosecution has now been placed between him and those offences.” Per Muhammad, JSC.
CASES CITED
1. Obafemi v. Obafemi (1965) 1 NWLR 446 at p.448.
2. R. V. Loxdale (1755) 1 Burr 445 at p.447
3. North Carolina v. Pearee (1969) 395 US 711;
4. Imade v. IGP (1993) 1 NWLR (Pt.271) 608;
5. Barmo v. State (2000) 1 NWLR (Pt.641) 424 at p.440 – C
STATUTES REFERRED TO
Armed Forces Act, Cap A20 LFN, 2004