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Home » Nigerian Cases » Supreme Court » Nigerian Army V. Abuo (2022) LLJR-SC

Nigerian Army V. Abuo (2022) LLJR-SC

Nigerian Army V. Abuo (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Abuja Division or Court below or lower Court, Coram: Emmanuel Akomaye Agim, Adamu Jauro JJCA (as they then were) and Stephen Jonah Adah, delivered on the 13th day of March, 2019, upholding the respondent’s appeal and setting aside the findings of the General Court martial delivered on the 11th October, 2012, which convicted the respondent of the offence of forgery, pursuant to Section 112(C) of the Armed Forces Act, Cap. A20, LFN, 2004 and sentenced him to six months imprisonment.

FACTS RELEVANT TO THIS APPEAL

The Respondent was arraigned before a General Court Martial convened by Major Gen. N.A. Nasamu and presided over by Brig. Gen. G. Lawal. He was charged with the offence of forgery contrary to Section 112(C) of the Armed Forces Act, Cap. A20, LFN, 2004.

The Respondent was alleged to have on or about the 28th of April, 2011 forged SD A1 Certificate, which he had been using as part of his qualifications in the service of the Nigerian Army.

​During interrogation, Respondent told the team of investigators at the headquarters of SIB how he was nominated for a course at the Command and Staff College Jaji, Kaduna by his unit in 1999 but could not attend the course.

He then sought the assistance of one warrant officer Mathew Agba who promised to help him procure the SD A1 Certificate which was the Certificate he would have been issued had he attended the course. The said W.O. Mathew Aoba was not called as a witness for the defence as the appellant had told the HQ SIB that he could not trace him and did not know the whereabout of the said W.O. Mathew Agba.

The prosecution called one witness Warrant Officer Christopher Eke (PW1) who was part of the team of investigators that interrogated the Respondent at HQ SIB. He tendered in total 10 Exhibits, which were certified documents including the statement the appellant made to the HQ SIB team (Exhibit 10) and also the response from the Command and Staff College Jaji, Exhibit P 9-5 indicating that the Respondent was never enlisted for the course and could not have been issued the said Exhibit P7 that he purportedly obtained from the institution.

The respondent on the other hand did not call any witness but rather rested his case on that of the prosecution; dwelling mainly on the admissibility of the exhibits the prosecution had tendered in proof of its case, notwithstanding that all the exhibits were duly certified and the fact that prosecution had informed the General Court Martial that as a practice, once cases are investigated at SIB and before the case file is forwarded to AHQ, copies are normally made of the documents and kept. See page 27 of the record of appeal.

The General Court Martial after trial found the Respondent guilty and convicted him of the offence of forgery, pursuant to Section 112(c) of the Armed Forces Act, Cap.A20, LFN, 2004 and sentenced him to six months imprisonment. The Respondent dissatisfied with the decision of the trial Court lodged an appeal at the lower Court vide a notice of appeal that was filed on the 17th of April, 2018 containing thirteen grounds of appeal.

​At the hearing on 13/1/2022 learned Senior Advocate, Abdulwahab Muhammed adopted the brief of argument filed on 10/1/2020 and deemed filed on 21/1/2021. Also adopted is the Reply Brief filed on 18/1/7021 and deemed filed on 21/1/2021. The appellant distilled a single issue for determination, viz:

Whether this appeal was statute barred.

Learned counsel for the respondent, Achinike G. William-Wobodo Esq. adopted the brief of argument filed on 9/3/2020 and deemed filed on 21/1/2021. He donated five issues for determination which are thus:

  1. Was the Court of Appeal in error when it held that the charge brought against the respondent more than three years after the alleged forgery was committed was statute barred and therefore robbed the General Court Martial of the jurisdiction to adjudicate upon the charge? (Ground 1; the sole ground of the Notice of Appeal)
  2. Whether in the circumstances of this case, the Court below was not in error and also acted in breach of its duty when it refused to consider and pronounce on diverse complaints and fundamental issues validly raised and canvassed before it by the Respondent, and if so, whether this Court has the power to determine the issues? (Ground 1 of the Respondent’s Notice)
  3. Whether the General Court Martial was right to have admitted the purported certified copy (tertiary evidence) of public documents produced from secondary documents which themselves were not certified true copy and did not satisfy the legal standard and requirement for the admissibility, and if not, was the trial Court right to have relied on such inadmissible evidence to convict the Respondent herein, (Ground 2, 3, and 7 of the Respondent’s Notice)
  4. Was the General Court Martial right to have held that the Prosecution proved the case of forgery against the Respondent herein beyond reasonable doubt (Ground 4, 8, 9, 10, 11 and 12 of the Respondent’s Notice).
  5. Whether the General Court Martial properly evaluated and applied the available evidence as required by law before it relied on same to convict the Respondent herein? (Ground 6 of the Respondent’s Notice)

I shall make use of the single issue crafted by the appellant as I am satisfied that the question that is germane in this appeal is the status of the matter that was before the General Court Martial and which is whether the suit therein was statute barred or not.

LONE ISSUE

Whether this appeal was statute barred.

​Learned Senior Counsel for the appellant contended that the issue in the instant appeal is very narrow and deals with whether the General Court Martial had jurisdiction to have convicted the respondent for forgery in view of the fact that he was not prosecuted three years after the commission of the offence in line with the provision of Section 169(1) of the Armed Forces Act.

He stated that the Court below relied on a wrong premise in determining and arriving at the wrong conclusion that the offence of forgery on which the respondent was tried at the General Court Martial was statute barred and that Court of trial lacked jurisdiction to try the respondent for the offence. He cited Ikine & Ors v Edjerode & Ors (2001) 18 NWLR (pt.745) p.446; UBN Plc v Umeoduagu (2004) 13 NWLR (pt.890) 352 etc.

It was further contended that assuming the cause of action arose outside of the three years period contemplated under Section 169(1) of the Armed Forces Act, that there are exceptions to the application of the limitation law such as in this instance where the offence is tainted with fraud. He referred to the case of Arowolo v Ifabiyi (2002) 4 NWLR (pt.757) 359

​That the General Court martial had jurisdiction and the offence of forgery charged not statute barred.

Learned counsel for the respondent contended that the Court below found that the alleged offence of forgery was committed in 1999 or at best on 14th March, 2000 and since the appellant had no ground of appeal challenging that material finding of fact by the Court below, the findings are deemed admitted by the appellant for the purpose of this appeal hence the action was statute barred. The implication being that the Court martial had no jurisdiction to adjudicate on the offence of forgery. He cited National Bank of Nigeria Ltd & Anor v John Akinkunmi Shoyoye & Anor (1977) LPELR-1948 (SC) Pp.15-16; (1977) 5SC 110; Madukolu v Nkemdilim (1962) LPELR-24023(SC); 1962 SCNLR 431.

It needs be pointed out that the respondent’s Notice to affirm was abandoned on 21/1/2021. Therefore the issues crafted and argued in respect thereof were struck out.

In reply on point of law, learned counsel for the appellant made a rehash of most of its submissions in the brief of argument and tackled everything the respondent stated in his response and removed the process from what it ought to be, a reply on points of law.

​Indeed the question before the Court in this appeal is on a very narrow compass as it deals with whether the General Court Martial had jurisdiction to have convicted the respondent for forgery in view of the fact that he was not prosecuted three years after the commission of the offence in line with the provision of Section 169(1) of the Armed Forces Act.

For clarity, I shall quote the said section of the Act thus:-

(1) No person shall be tried by a Court-Martial for an offence (other than mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three years after the commission of the offence, regard not being had to any period of time during which that person was a prisoner of war or was illegally absent, so however that-

See also  Lawrence V Bentworth Finance Nigeria Ltd (1965) LLJR-SC

The lower Court in holding that the trial Court lacked jurisdiction to try the Respondent for the offence of forgery, held as follows:

“The trial of the Appellant commenced with his arraignment on 11th September 2012, 13 years after 1999 or 12 years after 14th March 2000, the date on Exhibit P8. By virtues of Section 169(1) of the Armed Forces Act (AFA), the Appellant could no longer be tried for the offence of forgery of Exhibit P7 after 3 years from the end of 1999 or from 14th March 2000, that date on Exhibit P8. The said Section 169(1) of the Armed Forces Act (AFA) provides thusly-

(1) No person shall be tried by a Court-martial for an offence (other than mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three years after the commission of the offence, regard not being had to any period of time during which that person was a prisoner of war or was illegally absent, so however that- the trial of the appellant for the forgery of exhibit P7 became statute barred as it was not commenced within 3 years after 1999, or 14th March 2000, the date on Exhibit P8. So the trial Court lacked the jurisdiction to try the appellant for the forgery committed by him after the expiration of 3 years from 1999 or 14th March 2000 and therefore acted without jurisdiction when it commenced his trial on 11th September 2012, 13 years after 1999 or 12 years after 14th March 2000. The trial and conviction of the appellant including the sentence imposed on him by the trial Court is a nullity.” (See page 487 of the record of appeal)

​The stance of the appellant is that the lower Court relied on a wrong premise in determining and arriving at the conclusion that the trial of the Respondent by the General Court martial for the offence of forgery was statute-barred, and the Court therefore lacked jurisdiction to try the respondent for forgery.

Taking that position learned counsel for the appellant, submitted that in the application of the statute of limitation such as Section 169 (1) of the Armed Forces Act (AFA), an important consideration for its application is to determine when the party who would be adversely affected by such a limitation law became aware of the action complained about and when he approached the Court for redress. Each case must be decided on its peculiar facts and circumstances. This was the reasoning of this Honourable Court in the case of Ikine & Ors V. Edjerode & Ors (2001)18 NWLR PART 745 P. 466 wherein this Court held as follows:

“It is common ground that the question as to whether an action is statute-barred is dependent on the nature of the action, and the relevant provisions of the statute of limitations.” Per EJIWUNMI, JSC (P-17, para E-F)

​Also cited is the case of UBN Plc V. Umeoduagu (2004) 13 NWLR Pt.890, P. 352, thus:

“The cause of action normally arises as soon as the combination of facts giving the right to complain accrued or happened.” Per Kalgo, JSC

Taking the opposing view, learned counsel for the respondent submitted that the Court below found that the alleged offence of forgery was committed in 1999 or at best on 14th March 2000 and so the offence of forgery was completed the moment the mark or signature was made or the false document was made or altered, which was in 1999. That appellant has no ground of appeal challenging that material fact and so this Court should deem those findings admitted by the appellant. I shall quote the dictum of the Court below per Agim, JCA (as he then was) thus:

“Even though exhibit 8 is dated 14th March 2000, suggesting that it was made that day, the appellant’s statement in exhibit P96 and P10 state clearly that exhibit P7 and P8 were made together in 1999, even though exhibit P8 that was made together with exhibit P7 is dated 14th March 2000.

It is clear from exhibits P10 and the interrogation form in exhibit P9-6, that the appellant with W.O. Mathew Agba in 1999 made exhibit P7, knowing it to be false with the intent that the Nigerian Army authorities in the belief that it is genuine would be induced to promote the appellant. The offence of forgery created by S112(C) of the Armed Forces Act is committed once a false document is made knowing it to be false. The trial Court rightly held that forgery is completed the moment the mark or signature was made or the false document was made or altered.

The trial of the appellant commenced with his arraignment on 11th September 2012, 13 years after 1999 or 12 years after 14th March 2000, the date on exhibit P8.”

(Page 486-487 of the Record of Appeal).

​Considering the stipulation of Section 169(1) of the Armed Forces Act, it is difficult to fault what the Court below did, which is that the charge and trial of the appellant for the alleged forgery of exhibit P and was statute barred as it was not commenced within 3 years after 1999 or 14th March 2000 (the date on exhibit P8) and so the trial Court (GCM) lacked the jurisdiction (13 years or 12 years after) to try the appellant for forgery committed after the expiration of 3 years from 1999 or 14th March 2000.

Getting back to the very beginning on the matter concerning jurisdiction, it needs be reiterated that jurisdiction is the authority that a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction extends or it may partake of these characteristics. NATIONAL BANK NIGERIA LTD & ANOR. VS JOHN AKINKUNMI SHOYOYE & ANOR (1977) LPELR-1948 (SC) PER OBASEKI, J.S.C (Pp.15-16, also reported as (1977) 5 S.C. 110.

It is settled law that before a Court can assume jurisdiction over any cause or matter all of the following conditions must co-exist:

i. 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

ii. 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

iii. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

The absence of any of these conditions or any defect in competence is fatal, for the proceedings and decision therefrom are a nullity however well conducted and decided. GABRIEL MADUKOLU VS JOHNSON NKEMDILIM (1962) LPELR-24023 (SC), PER BAIRAMIAN, F.J. (Pp.16- 17); also reported as (1962) 2 SCNLR 431.

In this matter under discourse the second limb of the conditions “…and there is no feature in the case that prevents the Court from exercising its jurisdiction” was absent.

The General Court martial (GCM) is a creation of the Armed Forces Act and its authority to adjudicate over specified crimes derived therefrom and it is not unlimited. See Section 129 of the Armed Forces Act. Section 169(1) of the Armed Forces Act imposes a limitation on the authority of the GCM to the effect that “no person shall be tried by a Court-martial for an offence (other than mutiny, failure to suppress mutiny or desertion) unless the trial is begun within three years after the commission of the offence, regard not being had to any period of time during which that person was a prisoner of war or was illegally absent”

On 11/09/2012, the respondent was arraigned on one count charge of forgery, the Prosecution tendered several documents including Exhibit P 7, an allegedly forged SD A1 certificate Exhibit P7 though undated, gives the date of the course as “from 4th Oct. to 26 Nov. 1999”; Exhibit P10 and the interrogation of the Appellant on Exhibit P9-6 clearly showed that the SD A1 certificate (Exhibit P7) and Exhibit P8 were allegedly made and completed in 1999.

A perusal of the key wordings of the provisions of Section 169 (1) of the Armed Forces Act and placing them side by side with the evidence before the Court, the following undisputed facts emerge, and also lead to the findings that:

i. The trial Court was a Court martial;

ii. The alleged offence was NOT mutiny, or the failure to suppress mutiny or desertion, but of forgery;

See also  Ezulumeri Ohiaeri & Ors. V. Adinnu Akabeze & Ors. (1992) LLJR-SC

iii. The Respondent was neither a prisoner of war nor was he illegally absent at any material times before the commencement of the alleged trial on 11th September, 2012 when he was arraigned;

iv. The Respondent was not tried within 3 years after the commission of the offence, but was tried more than 13years after the forgery in 1999 or more 12years (undisputed finding of the Court below, at page 486 of the Record of appeal).

The path the Court tows when faced with the interpretation of a statute which is unambiguous and clear such as Section 169 (1) of the Armed Forces Act, 2004 is to give the provision a literal meaning and that was precisely what the Court of Appeal did. I place reliance on the cases of FAWEHINMI VS. INSPECTOR GENERAL OF POLICE, (2002) 8 NWLR (PT 767) 606 @ (678 PARA B-G); AFRICAN NEWSPAPERS VS. NIGERIA (1985) 2NWLR (PT 6) 137 @ (157) (PARA D-E).

The appellant had argued that in the application of a provision or statute of limitation, such as Section 169(1) of the Armed Forces Act (hereinafter) referred to as (AFA) the consideration for the computation of the time (i.e when the limitation law begins to run) is when the party who would be adversely affected by such act became aware of the action complained about, and when he approached the Court for redress.

A criminal offence is committed once the elements constituting that offence are completed. It is for this principle and jurisprudence that it is usually said that “time does not run against the Crown” (State). However, in the instant case where the legislation that created the criminal offence also limits the time for the prosecution of the offence, the right thing is to refer to the legislation for guidance as to the proper intendment of the lawmakers. The question is: did the makers of the Armed Forces Act intend that a military personnel should be charged and tried for forgery or any offence (other than mutiny, or failure to suppress mutiny or desertion) more than three years after the commission of the offence? The answer is in the negative, there is no provision in the Armed Forces Act from where this Court could infer anything to the contrary.

Again, looking at Section 169 (1) of the AFA critically, the most relevant part of that provision is the clause: “no person shall be tried by a Court-martial for an offence… Unless the trial is begun within three years after the commission of the offence.”

Under criminal law and jurisprudence, there is a presumption of vigilance and alertness on the part of the State (Crown), in this case, the military authority. Thus, where a legislation that creates a criminal offence also provides for time limitation for the prosecution of such offence, it imposes an implied duty of vigilance and alertness on the state (the party that should know, as it were). It is no excuse and unacceptable to argue that because the crime passed the vigilant eyes of the Military Authority, therefore the express provision of Section 169(1) of the AFA had become inoperative.

​The Appellant’s counsel, in urging this Court to allow this appeal, made reference to “cause of action”, which is applicable to civil causes. He argued that normally the cause of action arises as soon as the combination of facts giving the right to complain occurs or happens. Although this might be correct for a civil cause, it is not the same in criminal matter or offence. This is because, a crime or criminal offence is eventual in nature; it ends and completes with its commission. Once an offence is said to have been committed, and the cause of action (if so called) is completed at that stage. In criminal law, the only offence that is continuation in nature is “accessory after the fact”, which indeed is an ancillary offence to the main offence. Thus, the main offence would have been committed and completed before the offence of “accessory after the fact” will commence. The duration the offender rehearses the plot, the efforts and preparation made towards the commission of the crime, and to cover it up, etc merely lead in determining intent (mens rea).

The learned counsel for the appellant had anchored on the authority of Nigeria Ports Plc v Beecham Pharmaceuticals PTE Ltd & Anor (2012) 18 NWLR (pt.1333) 454, which in my humble view is distinguishable to the case at hand.

To put this point beyond doubt, it is important to distinguish the case of Nigerian Ports Plc vs. Beecham Pharmaceutical Pte Ltd & Anor from the instant case. In that case, which was purely a civil cause:

i. This Court interpreted Section 72(1) of the Nigerian Port Act, 1993 which provided thus:

when a suit is commenced against the company or an employee of the Company… the suit shall not lie or be instituted in any Court unless it is commenced within 12 months next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage within twelve months next after the ceasing thereof.

ii. That case was based on bailment; the delivery of personal chattel on trust (contact), express or implied, that the trust shall be duly executed, and the chattels redelivered in their original or an altered form; that delivery was in issue in that case.

iii. The cause of action, in that case was the delivery/loss of goods; for which there was initial disputation (and exchange of correspondence) on whether the good was actually lost.

iv. This Court merely confirmed that the cause of action arose at the point when the loss of the goods was indeed determined by the Appellant’s Investigation Report.

In the instant case which is criminal in nature:

i. The limitation was predicated on Section 169 (1) of the Armed Forces Act, which was based on time of commission of the offence;

ii. The offence and right of action was complete once the offence was committed in 1999;

iii. The investigation was principally to ascertain that the Respondent indeed committed the offence, it did not and could not have changed the date of the actual commission of the offence, which has been settled by the unchallenged finding of the Court of Appeal to be 1999.

The case of Nigerian Ports Plc vs. Beecham Pharmaceutical Pte Ltd & Anor (supra) is not on all fours with this case and should be treated as inapplicable to the matter before this Court.

Appellant’s counsel argued that even if the Court below was right in its decision that the offence was committed in 1999, the Court below ought to have applied the principle of exception, contending, and in his own words: “that the fraudulent act of forgery by the Respondent was concealed and the Appellant against whom the act was committed was ignorant of the commission of the offence until October, 2010”.

​That argument is counsel’s submission which is not available evidence before the Court and cannot take the place of evidence. Therefore the submission though brilliant cannot do that which evidence would have effected. See Umar v State (2018) LPELR -43719 (SC) Pp 52- 53; Niger Construction Ltd v Okugbeni (1987) LPELR-1993 (SC) P.7; Eya & Ors v Olopade & Anor (2011) LPELR-1184(SC) Pp 27-28; Aminu v Ogunyebi & Anor (2003) LPELR – 7195 (CA).

Learned counsel for the respondent had further contended that there are other fundamental reasons why this appeal should fail and they include:

  1. No live issue submitted by the appellant before this Court for determination.
  2. No ground of appeal to cover the contention and argument in the appellant’s seeks”.

The contention of the appellant is that an appeal is a continuation of the suit commenced at the trial Court and the issue could easily be raised suo motu by the Court in order to do justice to the appeal. He cited Ikuforiji v FRN (2018)6 NWLR (pt.1614) 13.

The issue submitted before this Court is completely at variance with the lone ground of appeal in the Notice of Appeal.

The Issue distilled by the Appellant from the above ground reads thus:

“Whether this appeal was statute barred”

Indeed this issue, as formulated by the Appellant did not arise from the lone ground of appeal before this Court, neither did it arise from the judgment of the Court below. There is nowhere in the ground of appeal that the Appellant is complaining about the status of “this appeal” or the Supreme Court, either on the ground that this appeal is statute barred or any other ground. It is now settled law that where a ground of appeal is not covered by the issues for determination set out in the Appellant’s Brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out. This Court reiterated this point in the case of NGILARI V. MOTHERCAT LIMITED (1999) LPELR-1988(SC) (P.47- 48)

See also  Metalimpex V. A. G. Leventis & Co. (Nigeria) Ltd. (1976) LLJR-SC

For emphasis, I shall refer to the decision of this Court in extenso in the case OGUNDIYAN V. STATE (1991) LPELR-2333(SC) (Pp.20-21, p.22) where it was pronounced thus:

“every issue for determination must be formulated from one or more grounds of appeal. Any issue which does not arise from the ground or grounds of appeal duly filed is not only irrelevant to the appeal on hand, but is also incompetent. Issues framed in the abstract have the same effect Issues in a brief should be framed by concrete reference to the facts of the case as raised in the grounds of appeal, It is also pertinent to note that a complaint raised in the grounds of appeal which is not covered by the issues for determination, is deemed to have been abandoned.

So, it is pretty clear that a bad brief is quite capable of ruining an otherwise good appeal. For this Court, as an appellate Court, operates on very clear principles. It is not expected, nor is it competent for it, to play the role of an Ombudsman who must pore through every page of the record looking for faults in the proceedings or the judgments. Rather, its role as a correcting house is limited to considering the merits, or otherwise, of the complaint properly raised in competent and duly framed grounds of appeal, and properly formulated as issues in the appeal which are properly argued in the brief It must be noted that a point not raised in the brief of argument cannot be raised in oral argument: Dilibe v. Nwakozor (1986) 5 N.W.L.R (Pt. 41) 315.

This appeal clearly illustrates the need for appellant counsel to take great care to present his client’s case in his brief Counsel has unwittingly abandoned ground 1 by failing to frame any issue on it. Four of the six issues have no grounds of appeal to support them, and so have no legs to stand. Worse, after framing the six issues for determination, he abandoned them and went ahead to argue the appeals on the grounds of appeal. This should not be, as appeal in this Court should, on the Rules, be argued on the issues, and not on the grounds of appeal. On the only issues properly presented for consideration, there is nothing I can usefully add to the opinion of my learned brother in the lead reason. It was for the same reasons that I dismissed the appeal summarily.”

See also: OSINUPEBI V. SAIBU & ORS (1982) 7 S.C. 104.pp. 110-113; GOVT. OF GONGOLA STATE v. TUKUR (No.2) (1987) 2 N.W.L.R. (Pt.56) 308; WESTERN STEEL WORKS LTD & ANOR v. IRON & STEEL WORKERS UNION OF NIGERIA & ANOR (1987) 1 N.W.L.R. (Pt.49) 284, p.304.

Therefore the issue formulated by the Appellant is irrelevant to this appeal. It is also settled law that the Court, including this Court, should at all times restrict itself to the consideration and determination of live issues only. See ODUTOLA & ORS V. MABOGUNJE & ORS (2013) LPELR-19909(SC) (P.37, paras, E-F) Per RHODES-VIVOUR, JSC; OYENEYE V. ODUGBESAN 1972 4 SC p.244; BAKARE V. A.C.B. LTD 1986 3 NWLR pt.26 p.47.

However there is need to answer the question “whether this appeal was statute barred”, either in the affirmative or in the negative, it does not effectually resolve or address the dispute between the parties as raised by the Appellant in its ground of appeal. It does not, because there is no challenge as to whether “this appeal” is statute barred. The dispute is whether the charge before the General Court Martial was statute-barred, not this appeal. It is only an answer relating to the jurisdiction of the General Court Martial (not the Supreme Court) that can resolve the dispute between the parties in this appeal.

No ground of appeal to cover the contention and argument in the Appellant’s Brief and what the Appellant seeks this Court to do.

​On the second reason why this appeal should fail; a careful examination of the Appellant’s arguments and contention in its Brief will show that the Appellant is actually seeking this Court to interfere with the findings of fact made by the Court of Appeal (i.e: that the offence of forgery was committed in 1999) without such ground of appeal.

On the 13th day of March 2019, the Court of Appeal, delivered its decision and made specific findings of fact about the time the forgery was allegedly committed by the respondent. The appellant did not file any ground of appeal complaining about these specific findings of fact.

This Court, therefore cannot interfere with the findings of the Court below (as to the date the offence was committed) without a valid ground of appeal or complaint to that effect. This is in line with the decision of this Court in case of BHOJSONS PLC V. KALIO (2006) LPELR- 777(SC) (P.22), Per MOHAMMED, JSC, where it decided as follows:

“…it is also a cardinal principle of law in Courts exercising appellate jurisdiction that before the findings or decisions of a trial Court can be contested at all, there must be a ground of appeal complaining of the inadequacies in the findings or decision. See Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 WLR (Pt. 39) 1 at 30- 31 and Ekpa v. Utong (1991) 6 NWLR (197) 258 at 285 Without such ground of appeal, the findings or decisions stand and no argument to undermine them, no matter even indirectly, will be entertained by the Court of appeal.”

I would want to conclude by bringing up the fact that the issue raised by the appellant in this appeal is outside the lone ground of appeal and even on that, the appeal should fail. This position I am guided by the policy and stand of the Apex Court as expressed in the case of OHIAERI & ANOR V. AKABEZE & ORS (1992) LPELR-2360(SC) P.23, paras A-B. In the case of OSUJI V. EKEOCHA (2009) LPELR-2816(SC) (P.31, paras. C-F), this Court deprecating such position, held thus:

“By introducing and making an elaborate issue in respect of joint ownership the learned counsel has now made out a case different from the Plaintiff/appellants’ case before the trial Court. This runs contrary to the practice and procedure of our civil jurisprudence that you cannot make a case on appeal different to your case before the trial Court. Neither is a counsellor litigant permitted to approbate and reprobate in the conduct of a case- Ezomo v. A.G. Bendel State (1986) 4 NWLR pt 36 pg 448 at pg 462. Kayode v. Odutola (2001) 11 NWLR pt 725 pg 659. An appeal is a continuation of the case before the trial Court.”

​However, for completeness and to lay to rest any nagging doubt as to the correct stance of what has erupted before this Court, which is whether or not the General Court Martial had jurisdiction to try the respondent which the Court of Appeal held that Court of trial lacked and had no difficulty in stating the reasons for the position the Court below took. Clearly, that stance of the lower Court is the right interpretation given to the enabling law which is the Armed Forces Act, Section 169(1) precisely. That is to say that the limiting effect of the statutory provisions ousted the jurisdiction of the General Court martial to adjudicate on a matter that was definitely statute barred having been brought over 12 years of the commission of the alleged offence of forgery.

​The clear and unambiguous stipulations of that law are not to be given any other interpretation than what the lawmakers intended, which were expressed simply in that legislation. Any grouse for a change is not for this forum but for the aggrieved to proceed to the legislature for an amendment or abrogation. This is because the Court has no other duty than to operate within the legislative framework granted it by the terms of a given piece of statute such as Section 169 (1) of the Armed Forces Act which prescribed three years for prosecution of an alleged offence such as the forgery charged. The action at the inception at the General Court martial was statute barred and the Court martial lacked jurisdiction to adjudicate. On this, the Court of Appeal was correct.

In conclusion, from whatever angle tackled, whether from an issue derived outside the ground of appeal or in answer to whether the General Court martial had jurisdiction or not, this appeal fails on both fronts.

The appeal lacks merit and I dismiss it. I affirm the erudite and well considered decision of the Court of Appeal.

Appeal dismissed.


SC.737/2019

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