Legalpedia Citation: (2022-04) Legalpedia 38956 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Apr 8, 2022

Suit Number: SC.737/2019

CORAM

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

AMINA ADAMU AUGIE

ABDU ABOKI

IBRAHIM MOHAMMED MUSA SAULAWA

PARTIES

NIGERIAN ARMY

APPELLANTS

M.W.O. OCHI ABUO

RESPONDENTS

AREA(S) OF LAW

APPEAL, COURT, JURISDICTION, MILITARY LAW, PRACTICE AND PROCEDURE, CRIMINAL LAW AND PROCEDURE

SUMMARY OF FACTS

The Respondent was arraigned before a General Court Martial convened by Major Gen. N.A. Nasamu and presided over by Brig. Gen. G. Lawal. He was charged with the offence of forgery contrary to Section 112(C) of the Armed Forces Act, Cap. A20, LFN, 2004.

The Respondent was alleged to have on or about the 28th of April, 2011 forged SD A1 Certificate, which he had been using as part of his qualifications in the service of the Nigerian Army. ​During interrogation, the Respondent told the team of investigators at the headquarters of SIB how he was nominated for a course at the Command and Staff College Jaji, Kaduna by his unit in 1999 but could not attend the course.

He then sought the assistance of one warrant officer Mathew Agba who promised to help him procure the SD A1 Certificate which was the Certificate he would have been issued had he attended the course. The said W.O. Mathew Aoba was not called as a witness for the defence as the appellant had told the HQ SIB that he could not trace him and did not know the whereabout of the said W.O. Mathew Agba.

The prosecution called one witness Warrant Officer Christopher Eke (PW1) who was part of the team of investigators that interrogated the Respondent at HQ SIB. He tendered in total 10 Exhibits, which were certified documents including the statement the appellant made to the HQ SIB team (Exhibit 10) and also the response from the Command and Staff College Jaji, Exhibit P 9-5 indicating that the Respondent was never enlisted for the course and could not have been issued the said Exhibit P7 that he purportedly obtained from the institution.

The Respondent on the other hand chose to rest his case on that of the Prosecution; dwelling mainly on the admissibility of the exhibits the Prosecution had tendered in proof of its case, notwithstanding that all the exhibits were duly certified and the fact that prosecution had informed the General Court Martial that as a practice, once cases are investigated at SIB and before the case file is forwarded to AHQ, copies are normally made of the documents and kept.

The General Court Martial after trial found the Respondent guilty and convicted him of the offence of forgery and sentenced him to six months imprisonment. The Respondent, dissatisfied with the decision of the Court Martial, lodged an appeal at the lower Court vide a notice of appeal filed on the 17th of April, 2018. The lower Court dismissed the appeal for being statute barred, hence the Appellant filed this further appeal.

HELD

Appeal dismissed

ISSUES

Whether this appeal was statute barred.

RATIONES DECIDENDI

MEANING AND NATURE OF JURISDICTION OF A COURT – LIMITS OF JURISDICTION

“Getting back to the very beginning on the matter concerning jurisdiction, it needs be reiterated that jurisdiction is the authority that a Court has to decide matters that are litigated before it, or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction extends or it may partake of these characteristics. NATIONAL BANK NIGERIA LTD & ANOR. VS JOHN AKINKUNMI SHOYOYE & ANOR (1977) LPELR-1948 (SC) PER OBASEKI, J.S.C (Pp.15-16), also reported as (1977) 5 S.C. 110.” – Per PETER-ODILI, JSC

JURISDICTION – CONDITIONS TO BE SATISFIED BEFORE A COURT CAN EXERCISE JURISDICTION IN ANY MATTER BEFORE IT – EFFECT OF ABSENCE OF ANY OF THE CONDITIONS

“It is settled law that before a Court can assume jurisdiction over any cause or matter all of the following conditions must co-exist:

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; and

ii.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

iii.The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

The absence of any of these conditions or any defect in competence is fatal, for the proceedings and decision therefrom are a nullity however well conducted and decided. GABRIEL MADUKOLU VS JOHNSON NKEMDILIM (1962) LPELR-24023 (SC), PER BAIRAMIAN, F.J. (Pp.16- 17); also reported as (1962) 2 SCNLR 431.” Per PETER-ODILI, JSC

GENERAL COURT MARTIAL – EXTENT OF THE JURISDICTION OF A GENERAL COURT MARTIAL

“The General Court martial (GCM) is a creation of the Armed Forces Act and its authority to adjudicate over specified crimes derived therefrom and it is not unlimited. See Section 129 of the Armed Forces Act. Section 169(1) of the Armed Forces Act imposes a limitation on the authority of the GCM to the effect that “no person shall be tried by a Court-martial for an offence (other than mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three years after the commission of the offence, regard not being had to any period of time during which that person was a prisoner of war or was illegally absent”.” – Per PETER-ODILI, JSC

OFFENCE OF FORGERY – POSITION OF THE LAW REGARDING TIME WITHIN WHICH A PERSON CAN BE TRIED BE TRIED BY A COURT MARTIAL FOR THE OFFENCE OF FORGERY

“A criminal offence is committed once the elements constituting that offence are completed. It is for this principle and jurisprudence that it is usually said that “time does not run against the Crown” (State). However, in the instant case where the legislation that created the criminal offence also limits the time for the prosecution of the offence, the right thing is to refer to the legislation for guidance as to the proper intendment of the lawmakers. The question is: did the makers of the Armed Forces Act intend that a military personnel should be charged and tried for forgery or any offence (other than mutiny, or failure to suppress mutiny or desertion) more than three years after the commission of the offence? The answer is in the negative, there is no provision in the Armed Forces Act from where this Court could infer anything to the contrary.

Again, looking at Section 169 (1) of the AFA critically, the most relevant part of that provision is the clause: “no person shall be tried by a Court-martial for an offence… Unless the trial is begun within three years after the commission of the offence.”” – Per PETER-ODILI, JSC

DUTY OF THE PROSECUTION – DUTY OF THE PROSECUTION WHERE A CRIMINAL LEGISLATION PROVIDES FOR TIME LIMIT FOR THE PROSECUTION OF AN OFFENCE

“Under criminal law and jurisprudence, there is a presumption of vigilance and alertness on the part of the State (Crown), in this case, the military authority. Thus, where a legislation that creates a criminal offence also provides for time limitation for the prosecution of such offence, it imposes an implied duty of vigilance and alertness on the state (the party that should know, as it were). It is no excuse and unacceptable to argue that because the crime passed the vigilant eyes of the Military Authority, therefore the express provision of Section 169(1) of the AFA had become inoperative.” – Per PETER-ODILI, JSC

CRIMINAL PROSECUTION – WHETHER TIME RUNS AGAINST CRIMINAL PROSECUTION

“The Appellant’s counsel, in urging this Court to allow this appeal, made reference to “cause of action”, which is applicable to civil causes. He argued that normally the cause of action arises as soon as the combination of facts giving the right to complain occurs or happens. Although this might be correct for a civil cause, it is not the same in criminal matter or offence. This is because, a crime or criminal offence is eventual in nature; it ends and completes with its commission. Once an offence is said to have been committed, and the cause of action (if so called) is completed at that stage. In criminal law, the only offence that is continuation in nature is “accessory after the fact”, which indeed is an ancillary offence to the main offence. Thus, the main offence would have been committed and completed before the offence of “accessory after the fact” will commence. The duration the offender rehearses the plot, the efforts and preparation made towards the commission of the crime, and to cover it up, etc merely lead in determining intent (mens rea).” – Per PETER-ODILI, JSC

CASES CITED

Not Available

STATUTES REFERRED TO

Not Available

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