Captain Y. U. Zakari V. Nigerian Army & Anor (2015)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

Appellant was a Captain in the Nigerian Army and at the time of the alleged offence serving as Chairman of the Task Force attached to the NITEL Office Iponri Lagos. On the trial and conviction on a one count charge of conduct prejudicial to service discipline, the Appellant was sentenced to a term of two years in prison.

Not satisfied with that judgment and sentence, Appellant appealed to the Court of Appeal or Court below on the ground that the trial Court Martial was not properly constituted and therefore lacked jurisdiction when it tried the Appellant. The Court below dismissed the appeal thereby affirming the decision of the trial Court Martial. Being further dissatisfied, the Appellant has come before this Court on four grounds of appeal.

BACKGROUND 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 (419) 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 fraudulent business otherwise known as ‘419’. The said staff was handed over to Mr. Odibo Isaac who was 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 containing the sum of N40,000.00 (Forty Thousand Naira) an amount given to the Appellant by the Managing Director of Chayoma Ventures. The Appellant took the money and in appreciation gave N5,000.00 (Five Thousand Naira) to Isaac Odibo.

The Appellant’s view is that the N40,000.00 was an appreciation by the Managing Director of Chayoma Ventures to the Appellant for the time and effort in carrying out the investigation. The Nigerian Army thought otherwise saying the money was given as gratification for the release of the arrested staff of Chayoma Ventures and on that basis convened the Court Martial which tried and convicted the Appellant.

On the 5th day of March, 2015, this Court heard the appeal but before then, Chief Theo Nkire, learned counsel for the Appellant adopted the Brief of Argument filed on 21/11/2012 and deemed filed on 2/4/14. The Appellant formulated a single issue which is thus:-

Whether the Court below was right in holding that the trial Court Martial, as constituted, had the jurisdiction to try the Appellant inspite of the judgment of the Supreme Court in Admiral Agbiti v Nigerian Navy (2011) MJSC Pt.II cited to her by Appellant’s counsel

For the 1st Respondent, Ms Toyin Bashorun of counsel adopted the Brief of Argument filed on 30/1/14 and in it crafted a sole issue thus:-

Whether or not the facts of this present appeal warrant the intervention of this Honourable Court to disturb the concurrent findings of the Lower Court

Chiesonu Okpoko Esq., learned counsel for the 2nd Respondent adopted the Brief of Argument filed on 22/5/14 and in their differently couched single issue stated as follows:-

Whether the Court below was right in dismissing the Appellant’s appeal for lacking in merit

The variously drafted issues identified by each of the parties are saying the same thing or raising the same question which is simply stated by the 2nd Respondent which issue I shall utilise.

SOLE ISSUE: