May 19, 2025
Legalpedia Citation: (2012-02) Legalpedia 95904 (CA) In the Court of Appeal HOLDEN AT LAGOS Thu Feb 9, 2012 Suit Number: CA/L/385/2002 CORAM HELEN MORONKEJI OGUNWUMIJU, JUSTICE COURT […]
CORAM
HELEN MORONKEJI OGUNWUMIJU, JUSTICE COURT OF APPEAL
JOHN INYANG OKORO, JUSTICE COURT OF APPEAL
SIDI DAUDA BAGE, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
ATTORNEY GENERAL OF THE FEDERATION
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, JURISDICTION, LAW OF EVIDENCE, MILITARY LAW, 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. In the course of performing his duties, the Appellant arrested a staff of Chayoma Ventures for interrogation following a tip off that the company was into illegal business, and was handed over to one Mr. Odibo Issac, a Customer Engineering Manager with NITEL, Iponri Exchange at that time with instruction to investigate the file of the said company. When the Appellant returned to the office that day, Mr. Isaac Odibo gave him an envelope, which contained the sum of N40,000.00, an amount given to the Appellant by the Managing Director of Chayoma Ventures and the Appellant thinking that it was given as appreciation for the time and efforts in carrying out the investigation, gave N5,000.00 to Odibo Isaac. The Nigerian Army thought otherwise saying that the amount was given as gratification for the release of the arrested staff of Chayoma Ventures. Consequently, the Court Martial was convened which tried and convicted the Appellant. Dissatisfied, the Appellant filed an appeal, which was later dismissed by this court for want of diligent prosecution. On a further appeal to the Supreme Court, the Apex Court set aside the order of the Court of Appeal and ordered that the appeal be heard de novo by another panel of this court. Hence this Notice of Appeal containing nine Grounds of Appeal.
HELD
Appeal Dismissed
ISSUES
1. Whether the Judgment of the Court Martial is a nullity for want of Jurisdiction.?
2. Whether the Special Court Martial erred in Law in convicting the Appellant on charge 1 (the only charge) when the purported amendment of convening order for General Court Martial dated 16th December, 1996 in which the Appellant was named was palpably defective.?
3. Whether the Special Court Martial did not err in law in trying, convicting and sentencing the Appellant on the charge of demanding and receiving gratification, when the prosecution had failed to prove beyond reasonable doubt that there was ever a demand by the Appellant for gratification from any interested party.?
4. Whether the Special Court Martial erred in law in trying, convicting and sentencing the Appellant when its constitution and procedures cumulatively amounted to a denial of the Appellant’s constitutional right to fair hearing.?
5. Whether the Special Court Martial erred in law in convicting and sentencing the Appellant for the offence charged on the evidence of Mr. Odibo alone who is deemed to be an accomplice before, during and after the offence of demanding and receiving gratification (if proved) without warning itself.?
6. Whether the Appellant in submitting himself for trial before the Special Court Martial had waived his legal and constitutional rights to fair hearing, fair trial and natural Justice under S.36 of the Constitution of the Federal Republic of Nigeria 1999, the African Charter Human and People’s Right and the rules of Natural Justice.?
7. Whether the Special Court Martial erred in law in convicting and sentencing the Appellant to a total of two years imprisonment being a sentence that is both obnoxious and speculative having regards to the evidence.?
RATIONES DECIDENDI
ISSUE OF JURISDICTION – THE FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION
“I am quite aware, and it is trite that issue of jurisdiction is very fundamental to adjudication in our courts because where a court has no jurisdiction to entertain a matter, the proceedings thereof and the decision reached no matter how well conducted, is a nullity and a waste of the valuable time of the court. See Utih v. Onoyivwe (1991) 1 N.W.L.R. (pt.166) 166 at 206; Jeric Nigeria Ltd. v. Union Bank of Nigeria (2000) 12 SC (pt.11) 133 at 139; Kato v. Central Bank of Nigeria (1991) 9 N.W.L.R. (pt.214) 126 at 148.
In Shell Petroleum Development Company Nigeria Ltd. v. Isaiah (2001) 5 SC (pt.11) 1, the Apex Court, per Mohammed, JSC, citing with approval the views expressed by the learned Author of Halsburys Laws of England, observed that:-
“Jurisdiction of a court has been judicially defined as very fundamental and priceless “commodity” in the judicial process. It is the fulcrum, centrepin, or the main pillar upon which the validity of any decision of any court stands and around which other issues rotate. It cannot be assumed or implied, or cannot also be conferred by consent or acquiescence of parties”.
See also Attorney General of Lagos State v. Hon. Justice L.J. Dosunmu (1989) 3 N.W.L.R. (pt.111) 552 at 566 – 567. –PER J. I. OKORO, J.C.A
ISSUE OF JURISDICTION – WHEN CAN THE ISSUE OF JURISDICTION BE RAISED?
“The issue of jurisdiction is so important that it can be raised at any time by a party even on appeal in this court or even at the Supreme Court. See Bronic Motors v. Wema Bank Ltd. (1993) 1 SCNLR 296 at 310. That is why every court has to satisfy itself that it has the requisite jurisdiction before setting out to hear any matter that is brought before it. The Appellant herein is complaining that the Court Martial that tried him was not properly constituted and this is one of the ingredients which the Supreme Court laid down in the case of Madukolu v. Nkemdilim (1962) 1 All NLR (pt.4) 557. The Apex court held that in order for a court to have jurisdiction in a matter, it must be:-
1. Properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. 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
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. -PER J. I. OKORO, J.C.A
COURT MARTIAL – CONSTITUTION OF A COURT MARTIAL
“Was the Court Martial which tried the Appellant properly constituted? This brings me to the provisions of the Armed Forces Act, Cap A20, Laws of Federation of Nigeria 2004, particularly Sections 129, 130, 131 and 133 of the Act. Section 133(1) of the Act states:-
“(1) Subject to the provisions of Sections 128 and 129 of this Act, a Court Martial shall be duly constituted if it consists of the President of the Court Martial, not less than two other officers and a waiting member”.
Section 128 relates to officers who are to act as appropriate superior authority in relation to a person charged with an offence and that includes:-
“a. the commanding officer, and
b. any officer of the rank of brigadier or above or officer of correspondent rank or those directed to so act under whose command the person is for the time being”.
Section 129 of the Act spells out two types of Courts Martial as follows:-
“There shall be, for the purposes of carrying out the provisions of this Act, two types of courts Martial, that is:-
(a) A general court Martial, consisting of a President and not less than four members, a waiting member, a liason officer and a Judge advocate;
(b) A Special Court Martial, consisting of a President and not less than two members, a waiting member, a liaison officer and a Judge advocate;
From all indications, the Appellant does not complain about the above provisions which seem to have been complied with. The complaint of the Appellant has to do with section 133(3)(b) which states:-
“133(b) where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused.” PER J. I. OKORO, J.C.A
COURT MARTIAL – JURISDICTION OF A COURT MARTIAL
“On the second issue, I wish to state clearly that whether a Court Martial is Special or General, they both have the same jurisdiction save where it consists of a president and two members, it cannot sentence above one year or impose sentence of death. Section 130(1)&(3) of the Act states:-
“130(1) A General Court Martial shall, subject to the provisions of this Act, try a person subject to service law under this Act for an offence which, under this Act, is triable by a Court Martial and award for the offence a punishment authorized by this Act for that offence, except that, where the Court Martial consists of less than seven members it shall not impose a sentence of death.
(2) ….
(3) A Special Court Martial shall have the powers of a General Court Martial except that, where the Court Martial consists of only two members it shall not impose a sentence that exceeds imprisonment for a term of one year or of death”.-PER J. I. OKORO, J.C.A
CRIMINAL TRIAL – INGREDIENTS A PROSECUTION MUST PROVE TO SECURE A CONVICTION FOR AN OFFENCE PREJUDICIAL TO SERVICE DISCIPLINE
“The following are what the prosecution must prove in order to secure the conviction of the Appellant under S.103 of the Armed Forces Act.
1. That the accused (Appellant) is subject to service (Military) law.
2. That he is guilty of an act which is prejudicial to service discipline.
3. That such act or conduct must have brought the Armed Forces into disrepute.
The Appellant is not complaining about the first and third ingredients of this offence. All he is saying is that the Respondents failed to prove the act which is prejudicial to service discipline. The act in this case is that of demanding and receiving of gratification. The evidence of the PW1, one Isaac Odibo is that on the fateful date, the Appellant, after arresting the employee of Chayoma Ventures Ltd, he kept him in the custody of the PW1 with an instruction to keep him till he came back from Lafiaji. He added that he should keep whatever the people might want to give him until he returned. On the same day, the Managing Director of the company came and gave N40, 000.00 to PW1 to keep for the Appellant. That is why the arrested man was released.
The Appellant’s counsel has argued that the Respondents failed to prove that the Appellant demanded and received N40, 000.00 as gratification.
The Court stated clearly in Buhari v. Obasanjo & Ors. (2005) 13 N.W.L.R. (pt.941) 1 at 295 paras B – E that –
“Moreover it is essential to know that most of the allegations questioning the propriety of the elections verged on counsel acts and other unethical acts. On the authority of Jim Nwobodo v. Onoh& 2 Ors. (1984) 1 SCQLR 1, they must be “proved beyond reasonable doubt”. What really does that expression mean? It is proof that precludes every reasonable hypothesis except that which it tends to support and verily it is proof that is consistent with the guilt of the accused person or against whom the allegation has been made. Therefore, it can be said that for evidence to attain the height that could bring about a conviction, it must exclude beyond reasonable doubt, every other hypothesis or conjecture or proposition or presumption except that of the guilt of the accused. If the evidence is wobbly, themative or vague or is compatible with both innocence or guilt, then it cannot be described as being beyond all reasonable doubt.” -PER J. I. OKORO, J.C.A
PRINCIPLE OF FAIR HEARING – THE PROCEEDINGS OF A COURT MARTIAL MUST BE GUIDED BY THE PRINCIPLE OF FAIR HEARING
“Let me use this opportunity to emphasize the fact that the Military has authority within its confines to disciple any erring or misbehaving soldier. However, the principle of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria must be the guiding principle in applying of sanction against a misbehaving Soldier. The rule of natural justice must at all times be complied with. See Esiaga v. University of Calabar (2004) 21 WRN, 28. –PER J. I. OKORO, J.C.A
EVIDENCE OF A SINGLE WITNESS – WHETHER THE COURTS CAN CONVICT ON THE EVIDENCE OF A SINGLE WITNESS
“On the argument that the Appellant should not have been convicted on the evidence of PW1 alone, it is my view that there is no law which prevents a court from convicting an accuse person on the evidence of one witness alone provided that the evidence is cogent and direct on the issue before the court. It is not the number of witnesses that can prove a charge but the potency and credibility of the evidence of witnesses. –PER J. I. OKORO, J.C.A
EVIDENCE OF ACCOMPLICE – WHETHER COURTS CAN RELY ON THE EVIDENCE OF AN ACCOMPLICE TO CONVICT AN ACCUSED PERSON
“On the issue that the PW1 was an accomplice that remains an allegation which issue has not been determined by the court. PW1 was not a member of the Task Force at least there is no evidence to say that he was. He did not take part in the arrest of the man of whose head the N40, 000,00 was paid. At least, these are facts we can gather from the record. How he became an accomplice is not born out of the record. How he became an accomplice is not born out of the record. Even if he was an accomplice, the Apex court has held that his evidence is not illegal and the court can still rely on his evidence to convict but the court has to exercise some caution in relying on such evidence. In Okasi & Anor. v. The State (1989) NSCC 375 at 382 & lines 5 – 15, the Supreme Court stated the position as follows:-
“The next question is as to the role of PW5, whether he could be regarded as an accomplice. An accomplice is certainly a person that participates in a crime for which the accused now in court are being tried and if tried with them on the same evidence would equally be guilty with the accused being tried. In essence an accomplice is not tried but it brought to trial along with other participles criminis, would become a co-accused person. In law an accomplice is a competent witness against an accused person and a conviction based on the evidence of such accomplice is not illegal, even where such evidence is uncorroborated, but by virtue of Section 177(1) of Evidence Act, there is a proviso that where such a trial is with a jury the Judge shall warn the jury of the danger of conviction on the uncorroborated evidence of an accomplice… It is up to the trial Judge to make sure that he weighs seriously such uncorroborated evidence of an accomplice before convicting on it.”
In the recent past, the Apex court reiterated the above principle and decision that conviction based on the uncorroborated evidence of an accomplice is not illegal. See Nwankwoala v. State (2006) 46 WRN 13. I am bound by these decisions. Therefore, assuming that the PW1 was an accomplice, the Court Martial still had the power to convict the Appellant based on the uncorroborated evidence of PW1. By virtue of Section 178(1) of the Evidence Act Cap E14 Laws of the Federal of Nigeria 2004; the reliance on such evidence to convict is not illegal. It is however safer for the court to insist on some corroboration where available in view of the proviso therein. See Danlami Ozali v. The State (1990) 1 NWLR (pt.124) 92 at 113 & 117; Christopher Okosi & anor v. The State (1989) 1 NWLR (pt 100) 642 at 657-658. –PER J. I. OKORO, J.C.A
ACADEMIC QUESTIONS – A COURT SHOULD NOT ENGAGE IN ACADEMIC QUESTIONS
“The last thing I want to say on this issue has to do with the question posed by the learned counsel for the Appellant on issue six i.e whether the Appellant in submitting himself for trial before the Special Court Martial had waived his legal and constitutional right to fair hearing. The question, as was observed by the learned counsel for the Respondents does not arise from any issue which transpired at the court below. It is an academic question which the Appellants want his court to go on a voyage of discovery. This court has no such time and as such I shall not embark on such an academic exercise. See Odedo v. INEC (supra).- PER J. I. OKORO, J.C.A
DENIAL OF THE RIGHT TO FAIR HEARING – DETERMINATION OF WHETHER OR NOT A PARTY HAS BEEN DENIED OF HIS RIGHT TO FAIR HEARING
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. A complaint founded on a denial of fair hearing is an invitation to the court hearing the Appeal to consider whether or not the court is against which a complaint is made has been generally fair on the basis of equality to all the parties before it.
It is wrong and improper to approach the meaning of fair hearing by placing reliance on any prior assumption as to its technical requirements. The simple approach is to look at the totality of the proceedings before the court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a court. The principle of fair hearing cannot be applied as if it were a technical Rule based on prescribed pre-requisites. See – Pom & Anor. vs. Mohammed &Anor. (2008) 5 – 6 SC (Pt. 1) 83. – PER S. D. BAGE, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
1. African Charter on Human and People’s Right
2. Armed Forces Act Cap A20, Laws of the Federation of Nigeria, 2004
3. Armed Forces Decree No. 105 of 1993
4. Constitution of the Federal Republic of Nigeria, 1999
5. Evidence Act, 2004
6. Ministry of Defence Manual of Military Law Part 1 (1972)