CORAM

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Peter Olabisi Ige JSC

Elfrieda Oluwayemisi Williams-Dawodu JSC

Ugochukwu Anthony Ogakwu JSC

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PARTIES

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PTE. JOHN OGHAEKOR

APPELLANTS 

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NIGERIAN ARMY

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ARMED FORCES LAWS, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This appeal is against the decision of the General Court Martial, convened by the Commander, Army Headquarters Garrison, Abuja, for the trial of the Appellant for the offence of murder contrary to Section 106 (c) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004.

In its judgment which, the General Court Martial held that the Appellant did not have the mens rea or guilty intent to kill the deceased and consequently convicted him of the lesser offence of manslaughter and sentenced him to life imprisonment.

Aggrieved by the decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal allowed.

 

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ISSUES

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1. Whether the Court Martial as constituted had the requisite jurisdiction to try and convict the Appellant?

2. Whether the trial and conviction of the Appellant is vitiated by the lack of fair hearing and manifestations of bias on the part of the Court Martial?

3. Whether the Court Martial rightly evaluated the evidence and rightly applied the law in coming to its decision to convict the Appellant?

 

 

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RATIONES DECIDENDI

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JURISDICTION – THE IMPORTANCE OF JURISDICTION IN ADJUDICATION

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…the threshold and fundamental question of jurisdiction, which is the fons et origo of the exercise of judicial power and judicialism. See MBAH vs. THE STATE (2014) LPELR (22729) 1 at 16-17, MISCELLANEOUS OFFENCES TRIBUNAL vs. OKOROAFOR (2001) 18 NWLR (PT 745) 295 at 326-327, UTIH vs. ONOYIVWE (1991) SCNJ 25 at 49 and OBIORAH vs. FRN (2016) LPELR (40965) 1 at 21-24. – Per U. A. Ogakwu, JCA

 

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JURISDICTION – WHETHER THE CONCEPT OF JURISDICTION AND THE INCIDENTS OF JURISDICTION APPLY TO COURT MARTIALS

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It is beyond confutation that even though a Court Martial is unlike the conventional Court and can be equated to a jury trial but even at that, the concept of jurisdiction and the incidents of jurisdiction are applicable to a Court Martial with the same force as it does to a conventional Court. See OLOWU vs. THE NIGERIAN NAVY (2011) 12 SC (PT II) 1 or (2011) 18 NWLR (PT 1279) 659 at 686, MAGAJI vs. THE NIGERIAN ARMY (2008) 3 SCNJ 82 and ODUFUYE vs. NIGERIAN AIRFORCE (2022) LPELR (57930) 1 at 19-20. So, the incidents of jurisdiction and the competence of a Court to adjudicate as laid down in MADUKOLU vs. NKEMDILIM (1962) ALL WLR 581 at 589-590 apply to a Court Martial. – Per U. A. Ogakwu, JCA

 

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INTERPRETATION – GUIDING PRINCIPLES IN THE INTERPRETATION OF STATUTES

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By all odds, Section 123 of the Armed Forces Act provides as follows:

“Before an allegation against a person subject to service law under this Act (in this section referred to as the ‘accused’) that he has committed an offence under a provision of this Act is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.”

Sections 124 and 125 of the Armed Forces Act then go further to give the Commanding Officer the discretion whether the allegation should be tried summarily or whether a charge should be tried by a Court Martial.

One of the cardinal principles of interpretation of a statute is the need for the Courts to adopt a purposive and creative approach. The Courts are to interpret statutes with a view to give effect to the intention of the lawmaker. The purposive approach is aimed at interpreting an enactment in the light of the purpose for which it was enacted. The Court must guide itself with the essence of a provision in order to give meaning to the words of the provision. See ABDULRAHEEM vs. OLUFEAGBA (2006) 17 NWLR (PT 1008) 280 at 355, PPA vs. SARAKI (2007) 17 NWLR (PT 1064) 453, MARWA vs. NYAKO (2012) LPELR (7837) 1 at 171-172, ABUBAKAR vs. YAR’ADUA (2008) LPELR (51) at 113 and KASSIM vs. ADESEMOWO (2021) LPELR (55333) 1 at 20-21.

Mindful of this, it seems limpid that the essence of Sections 123-125 of the Armed Forces Act is for the allegation against a service person to be investigated before a decision is taken on whether he is to be tried summarily or by a Court Martial. – Per U. A. Ogakwu, JCA

 

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OBJECTION – WHEN AN OBJECTION TO IRREGULARITY SHOULD BE RAISED

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It is settled law that any objection to such an irregularity ought to be raised immediately after the charge was read to the Appellant and not later: IBRAHIM vs. THE STATE (2018) 1 NWLR (PT 1600) 279 at 319-320, MAGAJI vs. THE NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 at 384, OSAJI vs. NIGERIAN ARMY (2020) LPELR (50368) 1 at 9-25, EGBE vs. NIGERIAN ARMY (2020) LPELR (50370) 1 at 8-21 and NGBEDE vs. NIGERIA ARMY (2020) LPELR (50514) 1 at 58-63.  – Per U. A. Ogakwu, JCA

 

 

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RECORDS OF APPEAL – THE IMPORTANCE OF THE RECORDS OF APPEAL

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Now, it is rudimentary law that parties and the Court are bound by the Records of Appeal, and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records of Appeal would be mere conjecture and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT STERLING (2018) LPELR (45108) 1 at 9. The Records of Appeal is the Holy Grail of the case, and a presumption of authenticity and correctness inures in favour of the Records of Appeal. See HASKE vs. MAGAJI (2009) ALL FWLR (PT 461) 887 at 904,NUHU vs. OGELE (2003) 18 NWLR (PT 852) 251 at 272 and AGBAREH vs. MIMRA (2008) LPELR (43211) 1. Appeals are heard and decided based on the Records of Appeal and an appellate Court has no jurisdiction to go outside the Records of Appeal to examine matters and draw conclusions which are not supported by the Records. See ONWUKA vs. ONONUJU (2009) 11 NWLR (PT 1151) 174, OLUFEAGBA vs. ABDUR-RAHEEM (2009) 18 NWLR (PT 1173) 384 and AGBAREH vs. MIMRA (supra) at 21. – Per U. A. Ogakwu, JCA

 

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ACCUSED – WHERE AN ACCUSED CLAIMS TO HAVE BEEN DENIED AN OPPORTUNITY TO PREPARE FOR HIS DEFENCE

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In AKANNI vs. NIGERIAN ARMY (2016) LPELR (41403) 1 at 11-12, this Court (per Nimpar, JCA) held that it must be apparent on the record that an accused person was denied an opportunity to fully prepare for his defence in order for it to be fatal and defeat the trial.  – Per U. A. Ogakwu, JCA

 

 

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COUNSEL – DUTY OF PARTIES TO ACCEPT THE PROFESSIONALISM OF THEIR COUNSEL

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It must be remembered that a party is bound to accept the professionalism of his counsel cum onere: OWNERS OF M.V. BACO LINER 3 vs. ADENIJI (1993) 2 NWLR (PT 274) 195 at 204, ADEBIYI vs. LEWIS (2021) LPELR (56079) 1 at 15 and UNITY BANK vs. IGALA CONSTRUCTION CO. LTD (2022) LPELR (57129) 1 at 39. The fact that the counsel, having conducted this matter on appeal, may have done things differently if he were seised of the matter at the General Court Martial is not sufficient reason to contend that the defence at the General Court Martial was conducted in a lackadaisical manner. – Per U. A. Ogakwu, JCA

 

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WAITING MEMBER – MEANING OF A WAITING MEMBER

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In OBISI vs. CHIEF OF NAVAL STAFF (supra) at 10, Pats-Acholonu, JSC asseverated:

“It is important to stress that there is no distinctive definition of who a waiting member is. However, I would define or describe a waiting member to mean a person who is to perform or stand by to take the place or position of a member of the panel of the Court who, in strictu sensu, for one reason or the other, is unable to sit in the panel and has to be substituted by another person already appointed or nominated to be a member in case of any eventuality. He shall be likened to a spare tyre. If he is around, he may not be noticed. He is not a member of the panel exercising a judicial function. Although this is not necessarily important or relevant for the purposes of establishing the importance or otherwise of the waiting member in relation to the construction of what is a valid Court Martial Court…”

… From the above dictum of the apex Court, there is no distinctive definition of a Waiting Member. What is, however, apparent is that he is a Member of a General Court Martial, who, like a spare tyre, only comes into use when he is called upon. So, just as a spare tyre is a tyre, is a Waiting Member a Member of the General Court Martial, notwithstanding the prefix Waiting. – Per U. A. Ogakwu, JCA

 

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JUDGMENT – WHERE THE MEMBERS OF THE COURT THAT GAVE THE JUDGMENT DID NOT HEAR ALL THE EVIDENCE

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The Respondent relies on the decision of this Court (per Abba-Aji, JCA as he then was) in ADETA vs. NIG ARMY (supra) to contend that the Appellant had waived his right to object since he did not complain at the time on the participation of the said Waiting Member. In arriving at the said decision, this Court relied on the decision of the Supreme Court in NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 62, where Ogbuagu, JSC held that a mere variation in the composition of a panel or tribunal or Court, which does not affect the substance of the inquiry, cannot touch, or affect the judgment or decision of such a body neither does such variation render the judgment or decision a nullity.

It does appear however that the apex Court has now taken a different view of the effect of a variation in the composition of a Court or tribunal. The current zeitgeist of the apex Court is that the decision in a case, where the members of the Court that gave the judgment did not hear all the evidence, is a nullity. See KALEJAIYE vs. LPDC (2019) LPELR (47035) 1 at 18-23, 26-30 and 30-33, NWALUTU vs. NBA (2019) LPELR (46916) 1 at 21-25, 27-29 and 30-32 and MUYIDEEN vs. NBA (2021) LPELR (55885) 1 at 9-10, 29-30, 30-31, 42-44 and 47-48. In the light of this now settled state of the law, the variation in the composition of the General Court Martial, when the Waiting Member who did not hear the evidence participated in arriving at the decision of the General Court Martial, rendered the entire proceedings a nullity. – Per U. A. Ogakwu, JCA

 

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PRESUMPTION OF REGULARITY – WHETHER THE PRESUMPTION OF REGULARITY CAN AVAIL A COURT WHO TOOK AN ACTION THAT WAS SUBSTANTIALLY IRREGULAR

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Let me state that I took cognisance of the stipulations of the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act. The said presumption is a rebuttable presumption. It will however not avail the Respondent where, as in this case, the Records of Appeal is translucent that a Member was drafted in after adduction of evidence and he participated in arriving at the decision in the case, even when he did not hear the evidence. The presumption of regularity cannot avail where what was done at the trial Court cannot be said to be substantially regular. – Per U. A. Ogakwu, JCA

 

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RETRIAL – MATTERS TO CONSIDER IN DECIDING WHETHER TO MAKE AN ORDER FOR RETRIAL

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A decision on whether a fresh trial is to be ordered is determined based on the peculiar facts and circumstances of a matter.

The well-settled position of the law is that when a trial is declared a nullity, a retrial is ordered if and only if the interest of justice so requires. See QUEEN vs. EDACHE (1962) 1 ALL NLR 22 and KAJUBO vs. THE STATE (1988) 1 NWLR (PT 73) 721. That is to say, a retrial or fresh trial would be ordered if the interest of justice requires that the accused person, the appellant, should be properly tried. Before ordering a retrial, it is mandatory that the judge examines the evidence to see the chances of success. For example, if the charge is for an offense which carries a term of years of imprisonment if found guilty and the accused person has already spent those years or more in custody awaiting trial or for trial, a retrial should not be ordered. If, on the other hand, the appellant was charged for a capital offence and the evidence reveals a likely conviction, a retrial or fresh trial ought to be ordered in the interest of justice: MOHAMMED V. STATE (2013) LPELR (19822) 1 at 13-14.

In ABODUNDU vs. THE QUEEN (1959) 4 FSC 70 the applicable principles to be considered where a fresh trial or retrial is to be ordered were stated as follows:

“Although the rules guiding an appeal Court in ordering a re-trial are not exhaustive and may be added or modified from time to time, an appeal Court would order a retrial if it is satisfied as to the following:

1. That there has been such an error in law or an irregularity in procedure that neither renders the trial a nullity nor makes it possible for the appeal Court to say there has been no miscarriage of justice.

2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.

3. That there are no special circumstances which would make it unjust to put the accused on trial a second time.

4. That the offence for which the accused is charged and their consequences are serious in nature, and

5. That to refuse an order of retrial would occasion a greater injustice than to grant it.”

See also ELIJAH vs. THE STATE (2019) LPELR (48946) 1 at 14-15.

In OKEGBU vs. THE STATE (1979) 11 SC 1, the apex Court stated that matters to consider in deciding whether to make an order of retrial included the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone by the accused person going through a fresh trial, the lapse of time since the commission of the offence and its effect on the quality of the evidence and the nature of the case of the prosecution against the prisoner as disclosed in the first trial, whether substantial or not.

…Suffice it to state that the evidence disclosed against the Appellant is such that to refuse to make an order for a fresh trial would occasion a greater injustice than to grant the order for a fresh trial: EWE vs. THE STATE (1992) 6 NWLR (PT 264) 147 at 154 and GANIYU vs. THE STATE (2013) LPELR (20334) (SC) or (2013) 10 NWLR (PT 1361) 29 at 41-42 and 45. The charge of murder and the conviction for manslaughter are not trivial offences. To not order a retrial will occasion greater injustice than to grant a retrial. See YAHAYA vs. THE STATE (2002) 3 NWLR (PT 754) 289 at 305, BUDE vs. THE STATE (2016) LPELR (40435) 1 at 23-25 and 27 and OGUNBOWALE vs. THE STATE (2021) LPELR (53498) 1 at 20-25. – Per U. A. Ogakwu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004

3. Rules of Procedure Army (1972)

4. Evidence Act 2011

 

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