Lt. Commander Steve Obisi Vs Chief Of Naval Staff (2004)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The appellant who is equally the cross respondent was charged and tried by a General Court Martial for various offences that violate the spirit of Armed Forces Decree No. 105 of 1993. The charges are that he disobeyed standing orders contrary to section (i) of Decree No. 105 of 1993. And that he engaged in private business and received gratification of N12,000,000.00 from Agric. (Nig.) Ltd.; that contrary to section 91 of the said Decree he donated the sum of N1,000,000.00 to Christ Chapel International Church, Ijora, that he travelled to London without official permission and lodged a sum of 40,000.00pounds with Barclays D/C London situate at 25- 27 Northumberland Avenue, London. He was convicted and sentenced by the General Court Martial, but not satisfied with the judgment of the Court Martial, he appealed to the Court of Appeal. Again before the Court of Appeal, his appeal was dismissed, whereupon he appealed to this court: Two issues were framed by the appellant’s counsel for consideration and they are as follows:

“1. Whether the General Court Martial was competent to try the appellant in view of its composition and the condition precedent to the assumption of its jurisdiction specified in the Armed Forces Decree No. 105 of 1993.

2. Whether the Court of Appeal was right in affirming the conviction of the appellant based mainly on his purported confessional statement when the condition precedent to the admission of the statement viz- a trial within a trial by the Court Martial was not complied with.”

The respondent replicando identified also two issues for determination and they are:

(a). Whether the learned Justices of the Court of Appeal were right in law to have affirmed the conviction of the appellant by the Court Martial.

(b). Whether the composition of the Court Martial without a waiting member at the trial of the appellant by same failed to comply substantial (sic) with the provisions of the Armed Forces Decree No. 105 of 1993 as amended.

The respondent who cross-appealed formulated one issue which is:

“whether the learned Justices of the Court of Appeal were right in law to have failed to make and or reaffirm the consequential orders of refund of various sums of money made against the cross-respondent by the Court Martial having due regard to the circumstances of this case.”

In respect of the first issue in the appellant’s brief the grava-men of his complaint is that the Court Martial that tried him was not duly constituted as prescribed by section 129 and section 133(1) of the Armed Forces Act of 1993, id est; that there was flagrant disregard of the clear provision of the act as some members were not in that court at the hearing of the case against him. The learned counsel for the appellant took a great exception to the fact that in particular there was no waiting member. He fervently argued with gusto and unction that a Court Martial where the waiting member is not present notwithstanding the presence of other members of the panel made up of the President and two or four other members depending whether the Court Martial is a General Court Martial or Special Court Martial, is null and void.

I shall set down the provisions of sections 129 and 133 of the Armed Forces Act of 1993.

Section 129. “There shall be, for the purposes of carrying out the provisions of this Decree, 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 liaison 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.

133-(1) subject to the provisions of sections 128 and 129 of this Decree, 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.