Colonel P. Y. Awusa V. Nigerian Army (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant, who was at the Nigerian Army School of Finance and Administration [NASFA], failed to join his unit from 21/2/2008 to 2/2/2010, and a General Court Martial [GCM] was convened by then Chief of Army Staff, Lt. General A. B. Dambazau, to try him for “desertion”, contrary to Section 60(1)(a) of the Armed Forces Act.

At the trial, Respondent called eleven witnesses and tendered thirty-two Exhibits, while Appellant testified in his own defence and tendered fourteen Exhibits. The GCM delivered its Judgment on 9/8/2010, wherein it found the Appellant guilty as charged and recommended that he be dismissed from the Nigerian Army, and this was confirmed by the Appropriate Superior Authority.

Dissatisfied, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing six Grounds of Appeal. Both sides formulated Issues for Determination in their Briefs of Argument; however, the Court of Appeal, upon considering the facts, was of the view that there were two Issues for Determination, as follows:

i. Whether the offence of

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desertion on the Charge Sheet and for which the Appellant was tried and convicted was known to and maintainable in law under the provision of Section 60 (1) (a) of the Armed Forces Act. Cap A20 Laws of the Federation of Nigeria, 2004.

ii. Whether the Respondent proved its case against the Appellant beyond reasonable doubt to warrant the conviction and sentence of the Appellant to dismissal from the Nigerian Army.

It resolved both Issues against the Appellant, and concluded thus:

This Court finds and holds that this Appeal is completely lacking in merit and it is hereby dismissed. The Judgment of the General Court Martial delivered on 9/8/2010, finding the Appellant guilty of desertion and recommending him for dismissal from the service of the Nigerian Army as well as the confirmation of the sentence by the Appropriate Superior Authority of the Nigerian Army on 3/12/2010 are hereby affirmed.

Further aggrieved, the Appellant filed a Notice of Appeal that was later amended in this Court, and the Amended Notice of Appeal contains nine Grounds of Appeal. However, the Respondent filed a Notice of Preliminary Objection urging this Court

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to strike out or dismiss this Appeal, and the Grounds of Objection are as follows –

(1) The Grounds of Appeal were not premised on any ground of law and as a matter of law cannot be appealed against as a matter of right.