L/CPL- Hamidu Musa 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, 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 1 Division

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Nigerian Army negligently performed your Military Dutythereby 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 on the said date as a rifle man, he finished his sentry by12.00 noon andhanded over to SSGT Bitrus andL/CPL Eke and entered the duty room to take hisbreakfast around 12 minutes after when he heard shouting by one of his soldiers saying “stop that car bomb” and jumping out of the room, he saw that there was an explosion. 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 62(b) of the AFA, 2004, later reduced to 18 months by the confirming

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authority. Dissatisfied with the said conviction and sentence, he appealed vide an Amended Notice of Appeal dated 14/11/2015 and filed on 17/11/2015, 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’s Commanding Officer as required by Paragraph 39(C) and 43 of the Manual of Military Law (MML) applicable to the General Court Martial.
GROUND THREE
The Honourable Court Martial erred in fact and Law when it found the Appellant guilty of negligent performance of Military duty despite the fact that the Appellant was not on sentry at the main gate at the

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time of the attack on 1 Division complex.
GROUND FOUR
The Honourable General Court Martial erred in Law when it failed and refused to consider the absence of any Standing Order and/or Standard Operational Procedure (SOP) creating the duty over which if any of the Appellants was found guilty for negligent performance,
GROUND FIVE
The Honourable Court Martial erred in Law when it found the Appellant guilty without enough evidence from the prosecution to support the finding,
GROUND SIX
The Honourable General Court Martial erred in Law when it based its finding on the failure of the Appellant to testify in defence of the charge against him,

In accordance with the Rules of this Court, the Appellant filed his Brief of argument dated 23/11/2015 and filed on 4/12/2015, settled by I.H. Mohammed, Esq, wherein he formulated 5 issues for the determination of the appeal to wit:-
1. Whether the proceedings, the judgment and/or findings of the trial General Court Martial is valid when same was not signed immediately it was delivered. (Ground 1).
2. Whether the trial General Court Martial was right and/or had jurisdiction to try the

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Appellant when the charge sheet upon which the Appellant was tried, convicted and sentenced was not signed by the Appellant’s Commanding Officer (Ground 2).
3. Whether the Appellant having successfully concluded his duty on sentry at the main gate and was eating breakfast in the guard room at the time of the attack on 1 Division was rightly found guilty by the General Court Martial for failure to stop and or avert the suicide bombers from charging through the gate and into 1 Division. (Ground 3),
4. Whether the Appellant’s exercise of his right not to incriminate himself by not entering a defence was rightly convicted by the General Court Martial in the absence of a prima facie case against the Appellant. (Ground 6).
5. Whether the conviction of the appellant can stand in the absence of evidence proving the guilty of the Appellant beyond reasonable doubt as required by evidence Act 2011. (Ground 5),

The Respondent on the other hand, filed its Brief of argument dated 31/12/2015 and filed on 11/1/2016, settled by A.I. Omachi, Esq, and raised 3 issues:
(i) Whether the decision of the trial General Court Martial was validly delivered