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:

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

Canvassing the position of the Appellant, Chief Theo Nkire of counsel stated that the Appellant was standing trial on a one Count Charge of conduct prejudicial to service discipline contrary to Section 103 of the Armed Forces Decree in the composition of the Court which was as follows:-

1. Lt. Col. S. O. Olojede (N/6183) – president.
2. Maj. MI Uzzi (N/6713) – Member
3. Capt. JM Aboki (N/7958) – Member
4. Capt. ID Bashir (N/9493) – Member.

Learned counsel for Appellant said at the time of the said trial, Appellant was a Captain (N/9043) in the Nigerian Army and so while the other members of the panel were Seniors to the Appellant, the same could not be said of Captain Bashir whose number is N/9493 while Appellant’s is N/9043 which situation ran counter to Section 133 of the Armed Forces Act Cap A 20 Laws of the Federation 2004 which stipulated that all members of the Court Martial shall have seniority over the Accused/Appellant. That though the Appellant had not raised that issue at the trial Court and only brought it in at the point of Appellant’s Brief at the Court of Appeal, being a matter of competence and jurisdiction of the Court, the Court can raise it suo motu and decide upon it.

For the Appellant, it was submitted that jurisdiction cannot be conferred by agreement nor can trial by a Court which lacked jurisdiction to so hear the case be justified because a party elected to be tried by that Court. He cited Agbiti v. Nigerian Navy (2011) 4 NWLR 174. That it is trite law that jurisdiction, the competence or power of a court to deal with all matters in controversy submitted before it, is the nucleus of all adjudication and so any decision made by a court without jurisdiction including the trial Court Martial is a nullity. He referred to Uti v. Onoyivwe (1991) 1 SCJN 25 at 49.

For the 1st Respondent, Ms Toyin Bashorun stated that it is trite that appeals stem from the judgment or findings of the Lower Court hence any issue not raised or canvassed at the Lower Court cannot be argued for the first time on appeal. That an appellate Court lacks jurisdiction to go into novel issues or matters which were not decided in the Court below. She cited Ohochukwu v A. G. Rivers State (2012) 2 MJSC (Pt.II) 65 at 95 – 96; Section 36 of the Constitution of the Federation. That there is nothing on which the concurrent findings of the two Courts below could be disturbed. She referred to Alhaji Ganiyu Martins v C.O.P (2012) 12 MISC (Pt.II) 73 at 93 – 94.

For the 2nd Respondent learned counsel, Chiesonu Okpoko Esq. contended that Section 137 (1) to (5) of the Armed Forces Act made adequate provisions for the Appellant to object and raise the issue of his seniority to Captain I. D. Bashir, a member of the Special Court Martial that tried him. That the Appellant ought to have produced the gazette showing his seniority to Captain Bashir in keeping with Section 24 of the Armed Forces Act. Also that even if Captain Bashir was junior, the fact that the quorum of the Court Martial is two with the President, the membership of Captain Bashir would not disqualify the panel. He cited Section 129 (b) of the Armed Forces Act.

Along the lines of the Reply Brief of the Appellant filed on 14/4/2014, it was contended that the Issue raised by the 1st Respondent on the absence of leave to raise and argue a new issue was not derived from the Appellant’s sole ground of Appeal. That the issue is one of the jurisdiction of the Special Court Martial which is a ground of pure law and so the matter of need for leave to raise and argue it here does not arise. That the issue so raised by the 1st Respondent is unarguable and incompetent. He cited Odu v State (2001) 10 NWLR (Pt.722) 672; Arun v Nwobodo (2013) 10 NWLR (Pt.1362).

That the Appellant cannot be taken to have waived his right to complain on the jurisdiction of the Court Martial as the law has not provided that jurisdiction can be conferred by consent. He referred to Adesola v Abidoye (1999) 14 NWLR (Pt.673) 208; Mobil producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346 at 434 – 435.

In Reply on Points of Law sequel to the Reply Brief of the Appellant against the arguments of 2nd Respondent filed on 8/10/14 and deemed filed on 5/3/15 and it was contended that even if Captain I.D. Bashir was a junior Officer to the Appellant, it would not rob the Special Court Martial of its jurisdiction to try the Appellant since there would be quorum without the said junior officer. He cited Oloriegbe v Omotosho (1993) 1 NWLR (Pt.270), Madukolu & Ors v Nkemdilim (1962) 1 All NLR 581.

That the case at hand is on all fours with Agbiti v Nigerian Navy (Supra).

In summary, the Appellant is of the view that Captain Bashir being a junior officer to the Appellant was not qualified to sit in judgment over Appellant in the Special Court Martial and that fact robbed the Court of its jurisdiction which issue can be raised at any time even if at the Supreme Court for the first time and also could be so raised suo motu by the Court. The fact of the matter not having been raised at the trial did not defeat Appellant’s right to justice and what the Court below did in raising that issue suo motu was its duty to so do.

The contrary opinion of the 1st Respondent is that the issue of Captain I.D. Bashir being an issue not raised at the trial Court Martial and so the case of Agbiti v Nigerian Navy (supra) would not apply in favour of the Appellant.

Also, that the concurrent findings of the two Courts below cannot be interfered with, the basis for which is not existing.

For the 2nd Respondent, his stand is that the Special Court Martial was properly constituted when it tried the Appellant and there was no material evidence to support the allegation of the junior status of Captain I. D. Bashir to the Appellant. Also, that since the Court was constituted with a president and three other members, the disqualification of Captain Bashir would not divest the Court of jurisdiction to try the Appellant.

At the root of this appeal is the jurisdiction of the trial Court Martial which the Appellant contends was ousted with the disqualification of one of the members of the panel, a point disagreed with by the Respondents. On this point therefore, a journey in time into the case of Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587 would be helpful where Bairamian FJ stated what has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate.

The Court held thus:

That a Court can only be competent when:

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.

From the guide proffered by Madukolu (supra), the question that crops up is if the Special Court Martial with the requirement of competence or jurisdiction in view of the first condition which if the Court was properly constituted and no member is disqualified for one reason or the other.

In seeking to provide an answer, the Respondents are of the view that the case of Agbiti v Nigerian Navy (2011) 4 NWLR (Pt.1236) would not be available to the Appellant in a way to get a favourable answer on his behalf as the facts herein are distinguishable.

A reference to Section 133 (1) of the Armed Forces Act is hereby made which provides as follows:-

Section 133 (1):

“Where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused”.

Also of note is the argument of the Respondents that the Appellant had opportunity in keeping with Section 137 of the Armed Forces Act to raise an objection before the commencement of the trial and he had none and the trial was started and completed and so cannot now want to harp on the constitution of the panel of judges at the trial court to have the judgment set aside. To this argument, I shall refer to the stand of this court on such a proposed estoppel or waiver to a discourse on jurisdiction at the appellate court even at the Supreme Court in such circumstances. The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346; a judgment of this Court per Niki Tobi JSC as he stated:-

“Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Noncompliance with the rules which affect the very foundation, or props of the case/cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of assistance to the adverse party. The defence of waiver lacks merit and I so hold”.

From a clearer view of what we are grappling with, I shall quote the salient parts of the judgment of the Court below which is thus at pages 262, 268 – 269 of the Record as follows:-

“I shall reproduce verbatim the argument of the learned counsel for the Appellant on issue one as follows:-

“We humbly submit that the special Court Martial that tried and sentence (sic) the Appellant lacked jurisdiction on account of improper constitution.

Contrary to the provisions of the Armed Forces Decree No. 105 of 1993, one of the officers Captain E.D Bashir junior officer to the Appellant sat on the tribunal that tried and convicted the Appellant without satisfying certain conditions precedent i.e. obtaining the consent of a superior before constituting the special Court Martial. It is our submission that failure to satisfy the condition precedent robs the special Court Martial of jurisdiction to try the Appellant which goes to the root of this finding”.

“That was all as far as issue one is concerned”.

“The complaint of the Appellant has to do with Section 133(b) which states:-

133(b): Where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused”.

The tragedy of this issue is that, apart from the argument of learned counsel for the Appellant in their brief that Captain I. D. Bashir, a member of the court was lower in rank to the Appellant, there is no evidence to support this.

As was observed by learned counsel for the Respondent, both the Appellant and I.D. Bashir are all captains and that being the case, there is no breach of Section 133 (b) of the Act. At the Court below, this issue was never raised. It only surfaces in the brief of the Appellant. How does the Appellant expect this court to verify whether Captain I.D. Bashir was a junior to him or not, especially when the Respondent also asserts that they are equal in rank

I need not waste more time on this issue, as the Appellant appears not to have been serious in putting forward his case on this issue. Without anything to the contrary, I think the Court Martial was properly constituted having regard to Section 150 of the Evidence Act. Issue one therefore does not avail the Appellant at all (underlining ours)”.

Situating the facts of this case including the findings and decision of the two Courts below and asking if the case of Agbiti v Nigerian Navy (2011) 4 NWLR (Pt.175) is relevant. I shall quote Adekeye, JSC for guidance. It was stated thus:-

“The law on the effect of any General Court – Martial not properly constituted had long been well settled by this Court in the case of State v. Olatunji (2003) 14 NWLR (Pt.839) 138 at 161 where Kalgo JSC said:-

“Any General Court-Martial which is not convened as required by the provisions of the Arms Forces Act is just like a Court or Tribunal which is not properly constituted”.

This decision is in line with the decision of this Court in the case of Modukolu & Ors v Nkemdilim & Ors (1962) 2 SCNL 341 at 348 where the court specified conditions to be satisfied before any Court of Law can exercise jurisdiction. These conditions include – (a) That the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another. (b) That the subject matter of the case is within the Courts jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. (c) That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence of court is fatal to its jurisdiction because the proceedings are a nullity however well conducted and decided, the defect being extrinsic to the adjudication. See also Tukur v Governor of Gongola State (1989) 4 NWLR (Pt.117) 513 and Alade v Alemuloke & Ors (1938) 1 NWLR (Pt.89) 201 at 204. It is quite clear that one of the requirements that must be satisfied before any Court can exercise jurisdiction is that the Court must be properly constituted as regards members and qualifications of the members such that no member of the Court is disqualified from being a member of the Court having regard to the provisions of the statute establishing the court. The provisions of the statute establishing the Court of the General Court – Martial dealing with the constitution of the Court are Sections 129 and 133 of the Armed forces Act Cap A20 Laws of the Federation 2004 where sub-Sections (1), (2) and (3) of Section 133 state – 133: (1) Subject to the provisions of Sections 128 and 129 of this Act, 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. (2) An officer shall not be appointed to be a member of a Court- Martial unless he is subject to service law under this Act and has been an officer in any of the services of the Armed Forces for a period amounting in the aggregate to not less than five years, (3) The President of a Court-Martial shall be appointed by order of the convening officer and shall not be under the rank of Major or corresponding rank, unless in the opinion of the convening officer, a major or an officer of corresponding rank having suitable qualifications is not, with due regard to the Public Service, available, so however that – (a) the President of a Court-Martial shall not be under the rank of a Captain or a corresponding rank; and (b) Where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused. It is very clear from the provisions of sub-Sections (3xb) above that the constitution of the General Court Martial to try the Appellant shall not contain or include any officer who is junior in rank in terms of seniority in the Armed Forces to the Appellant. Therefore, once it is established that one or more of the members of the panel of the General Court Martial to try an officer in the Armed Forces for any offence is or are juniors in rank and seniority to the officer to face trial before the panel of the General Court Martial, the panel becomes improperly constituted and thereby deprived of the jurisdiction to try the officer for any offence under the Armed Forces Act. Therefore, as the General Court Martial in the present case was not properly constituted to try the Appellant, its proceedings and judgment convicting the Appellant of the offences he was charged with, are a nullity”.

To get back on track, what is at play is whether or not there was jurisdiction in the Court Martial to try and determine the case against the Appellant. The undisputed facts are:-

1. the panel was made up of Lt. Col. S. O. Olojede (N/6183) President, Major M. I. Uzzi (N/6713) member, Captain J. M. Aboki (N/7958) member, Captain LD. Bashir (N/9493) member.
2. The Appellant’s number was N/9043 which no doubt places Appellant senior to I. D. Bashir.
3. The defect of this composition was not raised by the Appellant at the trial but by counsel at the Court of Appeal in appellant’s Brief of Arguments.
4. The Court of Appeal remarking on the jurisdictional point raised in that Appellant’s Brief of Argument dismissed it with ease on the ground that the Constitution of the Court Martial was properly made.

These facts now taken within what is now trite on when a court is properly constituted and when jurisdiction resides in a court or is absent, I would say that this case presents a face akin to what this Court was faced with in the Agbiti case (supra). This Court had stated clearly that the composition of members of the Court is a condition precedent imposed by statute and the non-compliance with the provisions of Section 133 of the Armed Forces Act strips the Tribunal of competence and so where the Court Martial lacks jurisdiction to try the appellant, all the proceedings in the trial and the verdict automatically come to naught. In the Agbiti case, two members were junior to the Appellant and that led to the incompetence of the Court. In this instance, one member is junior to the Appellant which in my humble view would suffer the same fate as the law made it clear that just one member who is junior would suffice to scuttle both the Court Martial and all its proceedings. There is no distinguishing feature between the case in hand and that of Agbiti v. Nigeria Navy (supra) as the Madukolu v. Nkemdilim (supra) had offered the earlier guide on both the matter of a member disqualified would affect fundamentally the competence and jurisdiction of the court and the matter of appropriate composition being a condition precedent which must be fulfilled without exception and in this instance that failure is fatal.

It is in the light of the above that the Respondents positing that the Appellant not availing himself of the provisions of Section 137(1) to (5) of the Armed Forces Act at the Special Court Martial is now forever estopped from raising the issue is too hard a pill to swallow. That Section provides thus:-

“137 (1) – An accused about to be tried by a Court Martial shall be entitled to object, on any reasonable grounds, to any member of the Court-Martial or the waiting member whether appointed originally or in lieu of another officer”.

The Respondents anchoring on Section 137 (1) of the Armed Forces Act and Appellant’s failure to utilise same for the appeal to be favourably determined in Appellant’s favour would not fly. The reasons have already been stated but at the risk of repetition I would adopt the Court of Appeal decision in Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt.647) where the Appellant, a Major in the Nigerian Army was tried by a panel consisting of, inter alia, two Captains who were below his rank and when asked in compliance with Section 137 of the Act whether he objected to the constitution of the panel, he answered in the negative and the Court Martial went on and thereafter convicted him. On appeal to the Court of Appeal and the matter of a defective composition based on those two juniors was raised by Appellant’s counsel, the Court of Appeal per Adamu JCA held:

“The failure of a party to raise an objection at a court martial as to the membership of unqualified officers on the court martial is not a bar, waiver or an estoppel for the said party to raise objection to the jurisdiction of the court martial on appeal. This is in line with the principle that a party cannot by consent or otherwise confer jurisdiction on a court where the Court has no jurisdiction to entertain the action. In the instant case, the contention of the Respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, has waived his right to subsequently complain or he has thereby conferred on the said court martial, the jurisdiction that it did not have, has no substance in law”.

The 2nd Respondent had raised the point that though Captain I.D Bashir was junior and therefore disqualified, the fact that in keeping with Section 129 (b) of the Armed Forces Act 2004 the quorum was in order with the president and two other members, the competence of the Court was not impugned. That argument, in my view, would not stand in the light of what is required for the jurisdiction of a court property constituted as has become trite, that is, once a member is disqualified and the panel or court goes on with the proceedings, everything done by that Court would collapse as the disqualification of anyone or more members renders the entire court incompetent and without jurisdiction. Section 133 of the Armed Forces Act so provided and the cases of Madukolu v Nkemdilim (supra); Agbiti v. Nigerian Army (supra) have ensured the mandatoriness of the compliance and not those defects that are redeemable or could be waived or treated as a mere irregularity not going to the root.

Before I conclude, I must say, this is one of those instances where the Supreme Court or an Appellate Court so positioned can intervene and disturb the concurrent findings and conclusions of two courts below. The reasons herein are that there has been a violation of some principles of law and procedure which have created a miscarriage of justice and so leaving me no option than to chart a different route. I rely on Alhaji Ganiyu Martins v. Commissioner of Police (2012) 12 MJSC (Pt.11) 73 at 93-94.

From the above, this appeal is meritorious and I allow it, I set aside the judgment of the Court of Appeal which had affirmed the decision, conviction and sentence of the Appellant. The Special Court Martial lacking in competence and thereby acting without jurisdiction, all its proceedings have accordingly been nullified, and hereby struck out.

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SC.456/2012