SGT. AKAWU BALA V. NIGERIAN ARMY

Legalpedia Citation: (2024-06) Legalpedia 33098 (SC)

In the Supreme Court of Nigeria

Fri Jun 21, 2024

Suit Number: SC.889/2017

CORAM

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Stephen Jonah Adah Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

PARTIES

SGT. AKAWU BALA

APPELLANTS

NIGERIAN ARMY

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, MILITARY LAW, ARMED FORCES REGULATIONS, HUMAN RIGHTS, PRACTICE AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Appellant was a Sergeant in the Nigerian Army. On December 9, 2012, while on duty at African Petroleum (AP) filling station at Sabon Tasha, Kaduna, the Appellant shot at one Isa Mohammed with an AK47 rifle. Isa Mohammed later died at St. Gerald’s Catholic Hospital, Kaduna the following day. The Appellant was arraigned before General Court Martial, Kaduna on a two-count charge: offences relating to sentries watch under Section 50(1)(d) of the Armed Forces Act and murder under Section 106(a) of the Armed Forces Act. The Appellant pleaded self-defense, stating that he was at his sentry post at night when someone walked aggressively towards him and refused to heed his order to stop, leading him to shoot. There were no eyewitnesses to the shooting. At the conclusion of the Court Martial, the Appellant was convicted and sentenced on Count 1 to be reduced to the rank of Corporal and death with respect to Count 2. The decision was confirmed by the appropriate superior authority, and the Appellant received notification of confirmation on June 26, 2014.

HELD

The appeal was allowed.
The order of the Court of Appeal declaring the proceedings of the trial Court (General Court Martial) a complete nullity was upheld.
The Court ordered that the Appellant, whose conviction and sentence had been nullified, shall be set free forthwith.
The Court determined that ordering a retrial would be oppressive given the circumstances and the length of time the Appellant had spent in custody.

ISSUES

Whether the decision of the lower Court that the Appellant cannot be discharged and acquitted was right, having allowed the appeal and held the charge sheet and judgment of the General Court Martial to be a nullity.
Whether the judgment of the lower Court amounts to a denial of the Appellant’s fundamental right and thereby occasions a miscarriage of justice considering the provisions of Section 193 of the Armed Forces Act Cap. A20 LFN, 2004.

RATIONES DECIDENDI

EFFECT OF NULLITY ON CRIMINAL PROCEEDINGS – IMPLICATIONS OF A NULL JUDGMENT

“A null judgment has been described as a void act, an act which has no legal force, effect or consequence. It is as if nothing happened. A legal action or proceeding that is incurably bad. It confers no right or impose no obligation on anybody.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

RETRIAL – PRINCIPLES GUIDING ORDER OF RETRIAL IN CRIMINAL CASES

“The Courts have always held that an order of retrial in criminal proceedings is made only where the interest of justice requires it.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

DETENTION AND FAIR TRIAL – CONSTITUTIONAL LIMITS ON PRE-TRIAL DETENTION

“An allegation of crime is not a ground for perpetual detention no matter the gravity of the offence. Hence people should not be kept in detention in perpetuity at the pleasure of the authority saddled with the responsibility to prosecute them when there is an allegation of crime.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

COURT MARTIAL PROCEEDINGS – VALIDITY OF CHARGE SHEET

“The charge sheet having not been properly signed by the Appellant’s commanding officer as required by law rendered all proceedings predicated on that charge sheet to be a nullity.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C

DOUBLE JEOPARDY – APPLICATION OF SECTION 193 OF ARMED FORCES ACT

“Section 193 is not applicable to the circumstances of the case since the Court below did not deign to determine the Appellant’s appeal on the merit, not to talk of quashing or affirming his conviction.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

FAIR HEARING – DUTY OF COURT TO ENSURE JUSTICE

“The Court under our Constitution must uphold the fundamental right of every citizen to fair hearing under Section 36 thereof.” – Per STEPHEN JONAH ADAH, J.S.C.

RETRIAL – CONSIDERATIONS FOR ORDERING RETRIAL IN MILITARY CASES

“Looking at the case of the Appellant under condition (c) quoted in the case of YESUFU ABODUNDU & ORS v. THE QUEEN (SUPRA), the Appellant having spent 11 years in custody as at the date when his appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

EVIDENCE IN CRIMINAL TRIALS – BURDEN AND STANDARD OF PROOF

“The record disclosed prima facie the defence of self defence for the Appellant in this case under review, the Appellant might on appeal on the merit be acquitted on the basis of self defence or at worst for manslaughter or unlawful killing since there is no evidence on record here that he shot at the deceased with malice aforethought.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

DISCHARGE AND ACQUITTAL – WHEN APPROPRIATE IN CRIMINAL CASES

“The proper order for the Court to make is one discharging the appellant having been in prison long over the constitutionally allowed period for incarceration awaiting trial.” – Per STEPHEN JONAH ADAH, J.S.C.

COURT MARTIAL JURISDICTION – EFFECT OF DEFECTIVE CHARGE

APPELLATE COURT’S POWER – MAKING CONSEQUENTIAL ORDERS

“It was erroneous of the Court below to have made an inchoate order in the circumstances of this case. By the failure of the Court below to make an executory order of retrial, the Appellant has perforce been in the prison since February, 2017, more than seven years ago.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

REASONABLE TIME FOR TRIAL – CONSTITUTIONAL REQUIREMENTS

“The Constitution provides for criminal trial to be commenced within a reasonable time and reasonable time to avoid abuse is also defined by the Constitution.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

RETRIAL IN MILITARY CASES – SPECIAL CIRCUMSTANCES

“The Appellant was in his line of duty as military personnel in the midnight. This taken together with the long detention of the Appellant should constitute special circumstances as would render it oppressive to put the Appellant on trial the second time and would occasion a greater miscarriage of justice than to discharge the Appellant.” – Per ABUBAKAR SADIQ UMAR, J.S.C.