Norbert Uche Okoro V. Nigerian Army Council (1999)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The appellant, a Major in the Nigerian Army was convicted on 27/12/96 for conduct to the prejudice of service discipline punishable under section 103 of the Armed Forces Decree, No. 105 of 1993. The proceedings (or trial) were conducted before a Court Martial (constituted under the Decree) which upon conviction sentenced the appellant to 18 months imprisonment. Being dissatisfied with his conviction, the appellant obtained the necessary leave and filed a notice of appeal to this court in terms with the Armed Forces (Amendment) Decree No. 15 of 1997 (section 183 thereof). For ease of reference and in this judgment the Armed Forces Decree No. 105 of 1993 will hereafter be referred to as the main or enabling Decree while the Amendment in Decree No. 15 of 1997 will be referred to as “the Amendment Decree”.

In its effort to prove its case against the appellant, the prosecution called 3 (three) witnesses on whose evidence it relied. The appellant on his own part testified as DW1 in his defence and although he indicated his intention to call his only witness (as DW2) it became impossible for him to secure the attendance of that witness by name Ex-Lieutenant Colonel Izuorgu. Consequently and upon the tip or tacit advice of the President of the Court Martial, the appellant abandoned his potential DW2. After hearing the witnesses (or evidence) on both sides and the final address by the prosecution as well as the appellant’s closing address, the Judge Advocate of the Court Martial also gave his summing up address. Thereafter the Court Martial made its findings (at pages 115- 126 of the record) under which it found the appellant guilty as charged and convicted and sentenced him accordingly as stated above. It is to be pointed out that this appeal is against conviction since the appellant has already finished serving the terms of imprisonment imposed on him by the Court Martial.

The prosecution’s case against the appellant was that on or about 13th January, 1996, he granted an unauthorised permission to a coup convict- Ex-Lt. Col. P.C. Izuorgu to travel from Ilorin to Lagos without proper security clearance. Lt. Col. P. C. Izuorgu was one of those convicted in the 1995 coup trial and sentenced to a term of imprisonment which he served at Ilorin Prison. On 3/1/96 some officers from Ilorin Prison had brought Exhibit P1 to PW1 – Major KTL Minimah wherein the prisons authority indicated that Lt. Col. P. C. Izuorgu had finished serving his sentence and would be released on 13/1/96. On 12/1/96 another set of officials brought a letter of reminder addressed to PW1. Unfortunately PW1 was away to Ibadan on that date so the prisons officials took the letter to the appellant as the next officer in rank or command. After seeing the two documents, the appellant advised the prisons official to wait until 14/1/96 before releasing the prisoner. The prisons officials explained that the official date of release (13/1/96) fell on a Sunday and that according to the prisons regulations or convention, a prisoner whose terms would expire on Sunday is to be released 24 hours earlier in order to avoid possible litigation. With this explanation, the appellant agreed and ordered PW3 to go to Ilorin Prisons on 13/1/96 and take delivery of the prisoner under armed escort.

When the prisoner was brought to the appellant he ordered that he be further detained at the Officers Mess under armed guard. Later on when PW1 still did not return from Ibadan, the appellant conveyed the prisoner in his personal car to the parade ground in Ilorin where he met PW2 and consulted him on the fate of the prisoner. PW2 advised that the prisoner should not be held any longer and should be released forthwith, and so the appellant ordered for the immediate release of the prisoner. However when PW1 later returned from Ibadan and heard that the appellant ordered the release of the prisoner he was upset and he ordered for the arrest of the appellant by members of the Directorate of Military Intelligence DM1 who arrested and detained him on 17/1/96. The appellant remained in this detention until his conviction on 27/12/96.

Briefs of arguments were filed by or on behalf of both parties in this appeal in accordance with the rules of procedure of this court and they were adopted by their learned counsel at the hearing of the appeal on 20/10/99. After adopting the appellant’s brief filed on 6/8/98, the learned counsel for the appellant Mr. Y, O. Alli (SAN) drew our attention to the recent decision of this court in the unreported judgment in CA/I/144/97 Lt. Col. E.O. Anene v. The State (Unrep.) delivered on 3/8/99. He pointed out that in that case which is on all fours with the present case, this court held (at pages 7 – 13 of the judgment) that where a court martial is not properly constituted in accordance with the provisions of the enabling law (or Decree) as in the present case see issue 1 of the appellant’s brief, any trial conducted by it is a nullity as it is made without jurisdiction. For this purpose the learned counsel submitted that the enabling law is Decree No.1 05 of 1993 under which Anene’s case (supra) was also decided. He referred us to section 133(3) of the Decree which spells out the constitution of a Court Martial under the said Decree. He also referred to the argument in the respondent’s brief (para. 5.02 thereof) under which the respondent tries to take solace in the exception (or saving) provision made in the subsection on the constitution of the Court Martial and contended that the sub-section (i.e) 133(7) is not applicable in the circumstances of the present case. The two conditions stipulated for the operation of the subsection have not been shown to have been satisfied or complied with in the present case just as it was held in Anene’s case (supra). The learned SAN finally urged us to allow the appeal in this case and enter a verdict of acquittal in favour of the appellant. The learned counsel for the respondent O.N. Ibrahim a Senior Legal Officer in the Federal Ministry of Justice, Lagos made a short reply to the above submissions of the appellant’s counsel. While he conceded that the jurisdiction of the Court Martial and its constitution under the enabling Decree are provided for in section 133(3) of the said Decree, he stated that the defect in the Court Martial’s constitution in the present case is cured by section 133(7) of the said Decree. He therefore urged us to hold so and after adopting their brief filed on 15/4/99 he urged us to dismiss the appellant’s appeal.

In the appellant’s brief, the following 3 (three) issues are formulated for the determination of the appeal:-

“1. Whether the whole trial was not a nullity having regard to the lack of jurisdiction of the General Court Martial to try and convict the appellant having regard to its improper constitution. 2. Whether the trial court martial was right to have convicted the appellant as charged when the prosecution failed to call vital witnesses, when the Court Martial did not evaluate at all the evidence led before it and when the prosecution did not prove its case beyond reasonable doubt.

3. Whether the trial conviction of the appellant was not a truncation of his right to fair hearing when he was not accorded equal right with the prosecution in the presentation of his defence and when he was found liable of an act that was not an offence under any written law.”

The three (3) issues of the appellant as reproduced above are also adopted by the respondent in their brief of argument. It is to be pointed out that the appellant has properly tied or married his three issues to the eight (8) grounds of appeal filed.

I will therefore adopt and rely on the issues as framed by the appellant in the determination of this appeal while I will rely on the respondent’s reply to the said issues as argued in the respondent’s brief in which they are substantially adopted – though reframed or re-worded. Since issue 1 of the appellant is on jurisdiction which is a fundamental and important subject and which will affect the very foundation and root of the whole proceedings and is capable if successful of rendering the whole proceedings a nullity. I will give it preference of treatment in this judgment. I will therefore begin by treating issue one separately and preferentially and if it eventually succeed there may be no need to consider or deal with other issues.

I agree fully with the opening submission in the appellant’s brief under issue No.1 that the issue of jurisdiction being fundamental in nature can be raised at any time or stage of the proceedings and even for the first time on appeal either at the instance of the parties or suo motu by the court itself- See P. E. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 684 and 693; Babale v. Abdulkadir (1993) 3 NWLR (Pt.281) 253 at 260 and Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 723 (cited in the appellant’s brief in support of the submission). It is also submitted that the parties cannot by their agreement or consent confer jurisdiction on a court where it had none. It is pointed out in the brief that by reference to the convening order at page 1 of the record in the present case, the composition of the president and members of the trial court martial is given and is shown as follows:-

“President – Col. C. O. Ajiamah

Members;

1. Lt. Col. E. O. Bello
2. Lt. Col. Denta
3. Maj. Y. U. Zuberu
4. Capt. J. S. Saviour
5. Capt. J. S. Malu.”

It is submitted that the above composition or constitution of the court martial offends or was contrary to the express provision of section 133(3) of Decree No. 105 of 1993 (the enabling Decree). The relevant provision of the Decree cited above is reproduced in the brief and it is submitted that being a straight forward and unambiguous provision it should be interpreted literally and enforced or applied by this court -Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt.498) 124 cited in the brief in support of the submission. In the same vein, it is argued in the brief that for a court martial to be properly constituted (under the Decree) for the trial of an officer in the Armed Forces, there must be strict and scrupulous adherence with the mandatory provision of section 133(3)(b)(supra) – See Obioha v. Dafe (1994) 2 NWLR (Pt.325) 157 at 173 also cited in support. Thus for a court martial to be properly constituted under the provision of the Decree (the brief argues), the following conditions precedent must be satisfied:-