CPL Osafele Friday V. Nigerian Army (2016)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

 This is an appeal against the decision of the Nigerian Army, 1 Mechanized Division General Court Martial sitting at 1 Division Headquarters Officers Mess, Kanta Road, Kaduna, presided over by Col. M.E. Odion (N/8437) as President, Col. J.O. Obasa (N/9025), Col. A. Garba (N/9496), Col. A.A. Bamgbose (N/9453), Lt. Col. B. Garke (N/9478), Lt. Col. S.I. Abdullahi (N/9854) and Lt. Col. R.B. Akindeyoje (N/9653); as members, and Capt. A. Mohammed (N/12687) as the Judge Advocate, delivered on 12/6/2013 in Charge No: 1DIV/G1/300/32, wherein the Appellant with 5 others pursuant to Section 62(b) of the Armed Forces Act, 2004, was convicted and sentenced to 2 years imprisonment and reduced to 18 Months by the confirming authority.

The lone charge against the Appellant in Charge NA Form B252, dated 31/7/2012 at pages 4-5 of the records reads as follows:

STATEMENT OF OFFENCE: Failure to perform Military duty contrary to Section 62(b) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004

PARTICULARS OF OFFENCE: In that you on 7 February, 2012 while on duty at Headquarters I Division Nigerian Army negligently performed your Military Duty thereby allowing suicide bombers access to the Division Complex.

COC EKULIDE

Col

For General Officer Commanding

The facts of the case by the Respondent is that the Appellant who was on duty at the main gate of 1 Division Headquarters on 7/2/2012 negligently performed his Military Duty thereby allowing suicide bombers access to the Division Complex. The Appellant’s case is that having been detailed as guard 21c from 6am to 12pm on the said date, he performed his sentry successfully without complaint and handed over to the next soldier, LCPL Collins Olubusola, by 12 pm and went inside the guard room to take his breakfast. Eventually, he heard the voice of the sentry man saying “stop that motor, stop that motor”. He suddenly heard a sound from the complex and when he went out, he discovered it was a suicide bomber. At the trial, the Respondent’s sole witness testified while the Appellant defended himself and made a no case submission which was overruled. Eventually, he entered his defence and rested his case on that of the Respondent. At the conclusion, the Appellant was convicted and sentenced to 2 years imprisonment contrary to Section 52(b) of the AFA, 2004, later reduced to 18 months by the confirming authority. Dissatisfied with the said conviction and sentence, he appealed vide an Amended Notice of Appeal dated 23/10/2015 and filed on 27/10/2015, wherein he raised 6 Grounds of Appeal hereunder reproduced without their particulars:

GROUNDS OF APPEAL

GROUND ONE

The Honourable General Court Martial erred in Law when it failed to sign the record of its proceedings/Judgment immediately after the conclusion of trial on 12th June, 2013, as mandatorily required by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rule 76(3) of the Rules of Procedure (Army) 1972.

GROUND TWO

The Honourable General Court Martial erred in Law when it assumed jurisdiction and tried and convicted the Appellant on the charge which was not signed by the Appellant? Commanding Officer as required by Paragraph 39(C) and 43 of the Manual of Military Law (MML) applicable to the