Ex.captain Y. U. Zakari V. The Nigerian Army & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A, (Delivering the Leading Judgment)

This is an appeal against the decision of a Special Court Martial convened by Brigadier General Aziza (as he then was) Commander of Lagos Garrison Command pursuant to the Armed Forces Act Cap A20, Laws of the Federation of Nigeria, 2004 on 9th of December, 1996 wherein the Appellant was convicted and sentenced to two years imprisonment on 6th January, 1997. A synopsis of the facts will suffice.

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 doing “419” business. The said staff of Chayoma Ventures was handed over to Mr. Odibo Issac 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 which contained the sum of N40,000.00, 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 to Odibo Isaac. The Appellant is of the view that the N40,000.00 was an appreciation of the MD of Chayoma Ventures to the Appellant for the time and efforts in carrying out the investigation. The Nigerian Army however thought otherwise saying that the amount was given as gratification for the release of the arrested staff of Chayoma Ventures. Consequently, the Court Martial was convened which tried and convicted the Appellant.

Dissatisfied, the Appellant filed an appeal which was later dismissed by this court on 2nd day of November, 2007 for want of diligent prosecution. On a further appeal to the Supreme Court, the Apex Court, on the 8th of October 2009, in Appeal No SC/371/07, set aside the: order of the Court of Appeal and ordered that the appeal be heard de novo by another panel of this court.

Notice of Appeal was filed on 18th December, 2002 sequel to an order for extension of time to appeal given by this court on 12th December, 2002. The said notice contains nine grounds of appeal out of which the Appellant has distilled seven issues for determination. The issues are:-

“1. Whether the Judgment of the Court Martial is a nullity for want of Jurisdiction.

2. Whether the Special Court Martial erred in Law in convicting the Appellant on charge 1 (the only charge) when the purported amendment of convening order for General Court Martial dated 16th December, 1996 in which the Appellant was named was palpably defective.

3. Whether the Special Court Martial did not err in law in trying, convicting and sentencing the Appellant on the charge of demanding and receiving gratification, when the prosecution had failed to prove beyond reasonable doubt that there was ever a demand by the Appellant for gratification from any interested party.

4. Whether the Special Court Martial erred in law in trying, convicting and sentencing the Appellant when its constitution and procedures cumulatively amounted to a denial of the Appellant’s constitutional right to fair hearing.

5. Whether the Special Court Martial erred in law in convicting and sentencing the Appellant for the offence charged on the evidence of Mr. Odibo alone who is deemed to be an accomplice before, during and after the offence of demanding and receiving gratification (if proved) without warning itself.

6. Whether the Appellant in submitting himself for trial before the Special Court Martial had waived his legal and constitutional rights to fair hearing, fair trial and natural Justice under S.36 of the Constitution of the Federal Republic of Nigeria 1999, the African Charter Human and People’s Right and the rules of

Natural Justice.

7. Whether the Special Court Martial erred in law in convicting and sentencing the Appellant to a total of two years imprisonment being a sentence that is both obnoxious and speculative having regards to the evidence”.

In their joint brief, the first and second Respondents have adopted the seven issues as postulated by the Appellant. I shall therefore determine this appeal based on the seven issues. In so doing, I intend to resolve issues one and two together, three and seven together and four, five and six together in view of the similarity of the issues and arguments they treat.