Major A. A. Adebayo V. Nigeria Army & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED A. DANJUMA, JCA (Delivering the Leading Judgment)

This is an appeal against the decision of the General court Martial convened at Enugu by the authority of the 1st Respondent on 22nd June, 2000 which was confirmed by the said 1st, Respondent on the 2nd day of July, 2001.

The Appellant was charged with the following offences:-

(a) Count one: Absence without leave for one (1) year and eight (8) months.

(b) Count two: Disobedience to particular orders.

The Appellant pleaded not guilty to the above mentioned charges and the matter proceeded to trial. At the conclusion of trial the Appellant who had pleaded not guilty and called 4 witnesses to testify in addition to his own testimony was convicted on the first head of count upon the evidence of one witness, who essentially tendered documentary evidence as the chief clerk of the 1st Respondent’s 81 Divisional Hqtrs., Enugu. He was acquitted on count 2 but convicted and sentenced to a term of reduction in Rank to Captain, with seniority from the date of pronouncement (underlining supplied by me for emphasis).

Dissatisfied with the conviction, sentence and confirmation, the Appellant herein has appealed to this court upon six initial grounds of appeal and 3 additional grounds of appeal.

The grounds of appeal are contained in the records and bear no reproduction as the appeal was argued on the issues adopted without any challenge to the grounds of appeal. The initial record of appeal was transmitted to this court on 15th June, 2005 whilst an additional record was transmitted on 9/2/10.

It should be pointed out that the confirmation of the sentence passed on the Appellant was a necessary legal requirement under the Nigeria Armed Forces Act, 1993, for the sentence passed to take effect.

In this matter on appeal, the 1st Respondent, after its confirmation sent a notice of confirmation to this effect “The Appellant is to suffer a reduction in Rank from Major to Captain with seniority in Rank from 22nd June, 2000 for committing battery and assault on a civilian staff.”

Following the filing of the processes aforesaid, the Appellant by leave of this court granted on the 14th November, 2006, was granted enlargement of time to file his Appellant’s Brief of Argument and a deeming order, pursuant to his motion filed on 23/10/06.

The Respondents, on their part, were granted extension of time within which to file their Respondents’ Brief of Argument, and a deeming order. This was by the order of this court made on 1/2/12 following a motion filed on 17/11/11 to that effect.

Before I proceed to consider the issues as formulated and argued by the parties in this appeal, it is important to point out that by a further affidavit in support of motion dated 11/7/2001 and filed on 14/11/2001 the Appellant herein indicated that there was the need to file further grounds of appeal upon reading the records of appeal of the General court marshall.

The additional grounds of appeal were attached to the further affidavit and marked Exhibit LO1. The said additional grounds of appeal were not, however, filed separately as additional grounds of appeal, and shall not thererfore be used in this proceeding as they remain as an Exhibit for the purpose of the motion for leave to appeal only. I shall now go back to the briefs as filed and argued.