Norbert Uche Okoro V. Nigerian Army Council (1999)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The appellant, a Major in the Nigerian Army was convicted on 27/12/96 for conduct to the prejudice of service discipline punishable under section 103 of the Armed Forces Decree, No. 105 of 1993. The proceedings (or trial) were conducted before a Court Martial (constituted under the Decree) which upon conviction sentenced the appellant to 18 months imprisonment. Being dissatisfied with his conviction, the appellant obtained the necessary leave and filed a notice of appeal to this court in terms with the Armed Forces (Amendment) Decree No. 15 of 1997 (section 183 thereof). For ease of reference and in this judgment the Armed Forces Decree No. 105 of 1993 will hereafter be referred to as the main or enabling Decree while the Amendment in Decree No. 15 of 1997 will be referred to as “the Amendment Decree”.

In its effort to prove its case against the appellant, the prosecution called 3 (three) witnesses on whose evidence it relied. The appellant on his own part testified as DW1 in his defence and although he indicated his intention to call his only witness (as DW2) it became impossible for him to secure the attendance of that witness by name Ex-Lieutenant Colonel Izuorgu. Consequently and upon the tip or tacit advice of the President of the Court Martial, the appellant abandoned his potential DW2. After hearing the witnesses (or evidence) on both sides and the final address by the prosecution as well as the appellant’s closing address, the Judge Advocate of the Court Martial also gave his summing up address. Thereafter the Court Martial made its findings (at pages 115- 126 of the record) under which it found the appellant guilty as charged and convicted and sentenced him accordingly as stated above. It is to be pointed out that this appeal is against conviction since the appellant has already finished serving the terms of imprisonment imposed on him by the Court Martial.

The prosecution’s case against the appellant was that on or about 13th January, 1996, he granted an unauthorised permission to a coup convict- Ex-Lt. Col. P.C. Izuorgu to travel from Ilorin to Lagos without proper security clearance. Lt. Col. P. C. Izuorgu was one of those convicted in the 1995 coup trial and sentenced to a term of imprisonment which he served at Ilorin Prison. On 3/1/96 some officers from Ilorin Prison had brought Exhibit P1 to PW1 – Major KTL Minimah wherein the prisons authority indicated that Lt. Col. P. C. Izuorgu had finished serving his sentence and would be released on 13/1/96. On 12/1/96 another set of officials brought a letter of reminder addressed to PW1. Unfortunately PW1 was away to Ibadan on that date so the prisons officials took the letter to the appellant as the next officer in rank or command. After seeing the two documents, the appellant advised the prisons official to wait until 14/1/96 before releasing the prisoner. The prisons officials explained that the official date of release (13/1/96) fell on a Sunday and that according to the prisons regulations or convention, a prisoner whose terms would expire on Sunday is to be released 24 hours earlier in order to avoid possible litigation. With this explanation, the appellant agreed and ordered PW3 to go to Ilorin Prisons on 13/1/96 and take delivery of the prisoner under armed escort.

When the prisoner was brought to the appellant he ordered that he be further detained at the Officers Mess under armed guard. Later on when PW1 still did not return from Ibadan, the appellant conveyed the prisoner in his personal car to the parade ground in Ilorin where he met PW2 and consulted him on the fate of the prisoner. PW2 advised that the prisoner should not be held any longer and should be released forthwith, and so the appellant ordered for the immediate release of the prisoner. However when PW1 later returned from Ibadan and heard that the appellant ordered the release of the prisoner he was upset and he ordered for the arrest of the appellant by members of the Directorate of Military Intelligence DM1 who arrested and detained him on 17/1/96. The appellant remained in this detention until his conviction on 27/12/96.

Briefs of arguments were filed by or on behalf of both parties in this appeal in accordance with the rules of procedure of this court and they were adopted by their learned counsel at the hearing of the appeal on 20/10/99. After adopting the appellant’s brief filed on 6/8/98, the learned counsel for the appellant Mr. Y, O. Alli (SAN) drew our attention to the recent decision of this court in the unreported judgment in CA/I/144/97 Lt. Col. E.O. Anene v. The State (Unrep.) delivered on 3/8/99. He pointed out that in that case which is on all fours with the present case, this court held (at pages 7 – 13 of the judgment) that where a court martial is not properly constituted in accordance with the provisions of the enabling law (or Decree) as in the present case see issue 1 of the appellant’s brief, any trial conducted by it is a nullity as it is made without jurisdiction. For this purpose the learned counsel submitted that the enabling law is Decree No.1 05 of 1993 under which Anene’s case (supra) was also decided. He referred us to section 133(3) of the Decree which spells out the constitution of a Court Martial under the said Decree. He also referred to the argument in the respondent’s brief (para. 5.02 thereof) under which the respondent tries to take solace in the exception (or saving) provision made in the subsection on the constitution of the Court Martial and contended that the sub-section (i.e) 133(7) is not applicable in the circumstances of the present case. The two conditions stipulated for the operation of the subsection have not been shown to have been satisfied or complied with in the present case just as it was held in Anene’s case (supra). The learned SAN finally urged us to allow the appeal in this case and enter a verdict of acquittal in favour of the appellant. The learned counsel for the respondent O.N. Ibrahim a Senior Legal Officer in the Federal Ministry of Justice, Lagos made a short reply to the above submissions of the appellant’s counsel. While he conceded that the jurisdiction of the Court Martial and its constitution under the enabling Decree are provided for in section 133(3) of the said Decree, he stated that the defect in the Court Martial’s constitution in the present case is cured by section 133(7) of the said Decree. He therefore urged us to hold so and after adopting their brief filed on 15/4/99 he urged us to dismiss the appellant’s appeal.

In the appellant’s brief, the following 3 (three) issues are formulated for the determination of the appeal:-

“1. Whether the whole trial was not a nullity having regard to the lack of jurisdiction of the General Court Martial to try and convict the appellant having regard to its improper constitution. 2. Whether the trial court martial was right to have convicted the appellant as charged when the prosecution failed to call vital witnesses, when the Court Martial did not evaluate at all the evidence led before it and when the prosecution did not prove its case beyond reasonable doubt.

3. Whether the trial conviction of the appellant was not a truncation of his right to fair hearing when he was not accorded equal right with the prosecution in the presentation of his defence and when he was found liable of an act that was not an offence under any written law.”

The three (3) issues of the appellant as reproduced above are also adopted by the respondent in their brief of argument. It is to be pointed out that the appellant has properly tied or married his three issues to the eight (8) grounds of appeal filed.

I will therefore adopt and rely on the issues as framed by the appellant in the determination of this appeal while I will rely on the respondent’s reply to the said issues as argued in the respondent’s brief in which they are substantially adopted – though reframed or re-worded. Since issue 1 of the appellant is on jurisdiction which is a fundamental and important subject and which will affect the very foundation and root of the whole proceedings and is capable if successful of rendering the whole proceedings a nullity. I will give it preference of treatment in this judgment. I will therefore begin by treating issue one separately and preferentially and if it eventually succeed there may be no need to consider or deal with other issues.

I agree fully with the opening submission in the appellant’s brief under issue No.1 that the issue of jurisdiction being fundamental in nature can be raised at any time or stage of the proceedings and even for the first time on appeal either at the instance of the parties or suo motu by the court itself- See P. E. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 684 and 693; Babale v. Abdulkadir (1993) 3 NWLR (Pt.281) 253 at 260 and Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 723 (cited in the appellant’s brief in support of the submission). It is also submitted that the parties cannot by their agreement or consent confer jurisdiction on a court where it had none. It is pointed out in the brief that by reference to the convening order at page 1 of the record in the present case, the composition of the president and members of the trial court martial is given and is shown as follows:-

“President – Col. C. O. Ajiamah

Members;

1. Lt. Col. E. O. Bello
2. Lt. Col. Denta
3. Maj. Y. U. Zuberu
4. Capt. J. S. Saviour
5. Capt. J. S. Malu.”

It is submitted that the above composition or constitution of the court martial offends or was contrary to the express provision of section 133(3) of Decree No. 105 of 1993 (the enabling Decree). The relevant provision of the Decree cited above is reproduced in the brief and it is submitted that being a straight forward and unambiguous provision it should be interpreted literally and enforced or applied by this court -Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt.498) 124 cited in the brief in support of the submission. In the same vein, it is argued in the brief that for a court martial to be properly constituted (under the Decree) for the trial of an officer in the Armed Forces, there must be strict and scrupulous adherence with the mandatory provision of section 133(3)(b)(supra) – See Obioha v. Dafe (1994) 2 NWLR (Pt.325) 157 at 173 also cited in support. Thus for a court martial to be properly constituted under the provision of the Decree (the brief argues), the following conditions precedent must be satisfied:-

1. The president shall be above the rank of the officer to be tried; or
2. Shall be of the same or equivalent rank but must be of seniority to the accused officer;
3. Other members of the Court Martial shall not be below the rank of the accused officer; but
4. If of the same rank with the accused officer they must enjoy seniority above him.

It is pointed out that two members of the Court Martial in the present case namely Captains J. S. Saviour and J. S. Malu were officers below the rank of the appellant who was a Major at the time of the trial proceedings. Thus it is pointed out that the appointment of those two members in the Court Martial was in violation of the express provision of the section of the Decree under review and the said members who are disqualified have rendered the whole Court Martial as incompetent to try the accused officer (i.e. the appellant). The trial proceedings of the Court Martial therefore was without jurisdiction and amounted to a nullity no matter how well conducted it might have been because the condition precedent for its adjudication was not fulfilled. See Modukiky v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1962) All NLR (Pt.2) Reprint 581 at 589 -590 (per Bairamian FJ) cited in support of the submission.

It is further argued in the brief that subsection (7) of section 133 of the enabling Decree is inapplicable to the circumstances of the present case since there is nothing in the record to show that the conditions for the application of the subsection and proper convening of the Court Martial were satisfied. In other words there is nothing in the record to show that senior officers of suitable qualification and above the ranks of the two captains were not available at the time of convening the Court Martial. Neither is it shown in the record that the convening officer had sought for and obtained the consent of the superior authorities before appointing the two officers who were of lower rank than the appellant into the Court Martial. The case of Colonel Umar Mohammed (Rtd.) v. The Nigerian Army (1998) 7 NWLR (Pt.557) 232 at 245 is cited in the brief in support of the argument. I also recall the oral address of the learned counsel for the appellant on the issue and the unreported authority cited as well as the reply of the respondent’s counsel thereto. Finally we are urged in the appellant’s brief to hold that the Court Martial in the present case lacked jurisdiction to try the appellant as it did and its proceedings amounted to a nullity. We are consequently urged to allow the appeal under the 1st issue of the appellant which we are required to answer in the negative and in favour of the appellant.

In reply to above submissions, the respondent’s brief adopts the facts of the case as stated in the appellant’s brief as well as the three issues formulated therein. In reply to the 1st issue on the competence or jurisdiction of the General Court Martial which tried and convicted the appellant, it is conceded in the brief that the composition of the Court Martial is or should be as provided in section 133(3) of the enabling Decree (which is reproduced in extenso in the brief).

It is submitted that despite the mandatory provision of that subsection, the saving provision in subsection (7) of the said section is applicable to the circumstances of the present case. It is pointed out that the convening officer in the present case was unable to comply with section 133(3) due to unavailability of officers above or equivalent to the rank of the appellant and so he acted under subsection (7) by appointing the two captains who were then available. It is argued that subsection (7) which is clear and unambiguous in its wordings should be given its plain and natural meaning – see Owena Bank Plc v. Nigerian Stock Exchange Ltd. (1997) 7 SCNJ 160 at 170; (1997) 8 NWLR (Pt. 515) 1 SC at 12; Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at 203; Awolowo v. Shagari & Ors (1979) NSCC 87 at 92; Ibidapo v. Lufthansa Airlines (1997 4 NWLR (Pt. 498) 124 cited in support of the argument. It is also pointed out in the respondent’s brief that under subsection 7 of section 133, there are only two conditions to be fulfilled or satisfied before the convening officer can validly convene or constitute a Court Martial. These two conditions are given as follows:-

(1) He must satisfy himself that the necessary number of officers having suitable qualification is not available with due regard to the circumstances.

(2) He must obtain the consent of the proper superior authority.

It is argued that the convening officer in the present case having complied with the requirements (or conditions) has validly constituted or convened the Court Martial and consequently it had jurisdiction over the appellant. It is further contended that the appointment of the two captains in the Court Martial did not result in the miscarriage of justice. At least the appellant did not assert or allege that the provision of subsection (1) of section 137 of the enabling Decree is also cited by the respondent (in their brief) and it is pointed out that the appellant under that subsection is given the right to object on any reasonable ground against the presence or participation of any member of the Court Martial and when the names and qualification of all the members of the Court Martial were read out to the appellant (in accordance with section 137(2)) and he was asked whether he had any objection, he replied in the negative. It is submitted that the non-objection of appellant to the membership or composition of the Court Martial amounted to submitting himself to the jurisdiction of the said Court Martial. Also, it is submitted that since the appellant had the opportunity to raise objection on the composition of the Court Martial and he failed to do so, he is thereby estopped from raising it at this stage since he had all the opportunity of doing so before or during the trial. The brief also cites the case of Madukolu & Ors. v. Nkemdilim & Ors. (1962) All NLR (Pt.1) 581 at 590 (1962) 2 SCNLR 341 in which the Supreme Court listed the three conditions precedent for a court to satisfy in order to have jurisdiction or competence in any case. It is submitted in the brief that in the present case, the General Court Martial had satisfied all the three conditions as recommended by the Supreme Court as well as the statutory requirements in section 133 and 137 of the enabling Decree. Thus it had full competence and jurisdiction to try the appellant as it did as well as over the subject matter in the case.

I decided to take the first issue which is on jurisdiction of the General Court Martial first and in priority over the other two issues involved in this appeal because of its fundamental nature. It is also in line with the practice of the Court that once an issue of jurisdiction is raised, it must be taken first and at the earliest opportunity so as to avoid an exercise in futility should it eventually turn out that the court lacked jurisdiction. Also, because of its being a radical and crucial question of competence it is neater and far better for the court to settle the issue of jurisdiction (either of itself or of any other lower court from where the appeal came to it) one way or another before proceeding to hear the case (or the appeal) on the merit. This priority of treatment enjoyed by the issue of jurisdiction is informed by common sense and supported by judicial authorities. If the court has no jurisdiction to hear the case, its proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been; as a defect in competence is not extrinsic to but rather intrinsic to the adjudication – see Madukolu v. Nkemdilim (supra, cited in both briefs); A.G. Lagos State v. Dosunmu (1989) 3 NWLR(Pt. 111) 552 at 566; Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26; P. E. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675; A. G. Anambra v. A.G. Federation (1993) 6 NWLR (Pt.302) 692. It is also because of its fundamental nature that the issue of jurisdiction may or can be raised at any time in the proceedings even for the first time at the appeal level without any leave and it can even be raised by the court suo motu in order to avoid an exercise in futility. It does not also matter even if the appellant who is raising it for the first time on appeal had taken part in the proceedings before the lower court. Thus where the court lacks jurisdiction the parties or their representatives (e.g. counsel) cannot by overt action or omission or by agreement confer jurisdiction on the said court. The said parties cannot waive their right to be tried by a competent court by their submission (express or implied) to the court’s jurisdiction – see Yusufu v. Co-Operative Bank Ltd. (1994) 7 NWLR (Pt .359) 676; Ajakaiye v. Military Governor of Bendel State (1993) 9 SCNJ 242; Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661. It is under the principles of law as decided in the cases cited above that I find the submissions in the appellant’s brief on the 1st issue as unassailable.

It is not in dispute that the Court Martial that tried and convicted the appellant was constituted under the enabling Decree. Although the convening order does not expressly state that it was made pursuant to section 133(3) of the enabling Decree, both parties in this case have agreed (in their respective brief of argument) that it was so constituted under the said subsection of Decree No. 105 of 1993. At this stage I think it is necessary to reproduce the provision of the controversial subsection of the said Decree under which the Court Martial was constituted or convened. It provides as follows:

133(3) The President of a Court Martial shall be appointed by the 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.”

(Italics supplied for emphasis)

The above provision is very clear and unambiguous and under the rule of statutory interpretation (as proposed in the two briefs in the present case) I will interpret them in accordance with their ordinary, grammatical and plain meaning – See Awolowo v. Shagari & Ors. (supra); Klifco v. Philipp Holzmann A.G. (1988) 3 NWLR (Pt.436) 276 at 297; I.B.W.A. Ltd. v. Imano (Nig.) Ltd. (1998) 3 NWLR (Pt.85) 633; and Egbue v. Araka (1996) 2 NWLR (Pt.433) 688 at 701 – 702. Thus applying the above elementary rule of interpretation of statutes to section 133(3) of the enabling Decree, it is easy to see that the presence of Captains J. S. Saviour and J. S. Malu as contained in the convening order of the Court Martial in the present case (see page 1 of the record of proceedings) offended against and was contrary to the express, plain and unambiguous provision of the subsection. The two captains appointed to the Court Martial were not qualified to be so appointed by virtue of the provision of the subsection as reproduced and italicised above. Consequently under the principle in Madukolu v. Nkemdilim (supra) cited in both briefs) relied upon by the respondents themselves the Court Martial which was not properly constituted (or composed) in accordance with the Decree lacks the required jurisdiction to adjudicate in the matter (i.e. trying the appellant). In the celebrated case of A.G. Lagos State v. Dosumu (supra), the Supreme Court while affirming the principles adumbrated in Madukolu v .Nkemdilim (supra) on the radical and fundamental nature of the issue of jurisdiction, attempted the definition of the term in its narrow sense to mean “the limits which are imposed upon the power of a validly constructed court to hear and determine issues between persons seeking to avail themselves of its process by reference to:-

(i) the subject matter of the issue, or

(ii) the persons between whom the issue is joined; or

(iii) “the kind of relief sought.”

(Italics supplied for emphasis) – See page 602 of the report.

From the italicised portion of the above quoted statement the definition of the term “jurisdiction” presupposes that the court or tribunal is properly and validly constituted. Thus the power or authority of a court or tribunal to proceed to hear and determine a particular case before it can be established if (inter alia):

“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.”

(per Oputa JSC at pages 566 – 567 of the report).

It is in line with the above principle of law on the issue of jurisdiction vis a vis the plain and unambiguous meaning of section 133(3) of the enabling Decree (i.e. No.1 05 of 1993) that I consider the constitution or composition of the Court Martial in the present case as invalid and defective. Clearly the two captains who were below the rank of the accused person/appellant were not qualified to be appointed or to take part as members of the Court Martial. Consequently, the said Court Martial which was not validly constituted in accordance with the provision of the enabling Decree lacked the required jurisdiction to adjudicate or to try the appellant. I therefore hold so.

As regards the respondent’s argument on the application of the saving provision of section 133(7) in the case, I agree with the submission of the learned counsel for the appellant that there is nothing in the record of proceedings to show that the convening officer had satisfied himself that there was no officer of the same rank with the accused person (or of suitable qualification) available at the place and time of constituting the Court Martial. Neither is there anything in the record to show that the convening officer had sought for or obtained the consent of the superior authority before co-opting the two captains into the Court Martial (who are otherwise unqualified to be so appointed). Thus the inherent invalidity of the constitution or composition of the court in the present case cannot be cured or rectified by the provision of section 133(7) as argued by the respondent. Furthermore, the consent of the superior authority under section 133(7) is one of the conditions precedent to the application or invocation of the subsection whenever the need arises which necessitates deviation or departure from the strict and mandatory provision of section 133(3) in relation to the appointment of members of the Court Martial. Thus it cannot be presumed that because the General Officer Commanding (GOC) of the Army Division (or command) involved is aware of the qualifications or availability of officers under his command his decision to appoint non-qualified officers cannot be challenged and that any substitution made by the convening officer will be rendered valid even in the absence of the express consent or authority of the superior authority. This view in my view is very highly misconceived because, the GOC was also the convening officer in the present case and if we are to apply the wordings in section 133(7) he should seek for and obtain the consent or authority of “the proper superior authority”. In other words the proper authority whose consent is required for the purpose of the subsection must be superior to the convening officer. In the present case the proper superior authority appropriate for the purpose of the subsection (i.e. 133(7) in the present case should be an officer or authority who or which is superior to the G.O.C. (e.g. the Chief of Army Staff or the Minister of Defence). In any case I am of the view that the strict, statutory and mandatory requirement on the composition of the Court Martial in the present case (as provided in section 133(3) were not in any way saved or exempted by section 133(7) as canvassed by the respondents (in their brief).

As regards the appellant’s non-objection to the membership of all the officers named in the convening order (as contained at page 3 of the record of proceedings) upon which the respondent’s brief relies to show that the said appellant had thereby submitted himself to the jurisdiction of the Court-Martial, it is my firm view that that submission is an after thought and misconceived. The issue of jurisdiction being intrinsic rather than extrinsic to adjudication is so fundamental that it cannot be waived by a party to the proceedings. In the present case where there is a statutory condition precedent imposed before the Court Martial can be competent to adjudicate (i.e. section 133(3)) and that condition has not been strictly fulfilled, such failure to fulfill cannot be waived by the appellant who was helpless under the circumstances. Also the duty to fulfill the said condition precedent was not cast on the said appellant but rather on the convening officer (i.e. the GOC). The non-objection by the said appellant cannot be treated as a waiver or an estoppel under the circumstances and even if so treated cannot avail the respondent. It is like a situation where a party who raises the issue of lack of jurisdiction is sought to be estopped merely because he took part in the proceedings at the lower court. This has been held by both the Supreme Court and this Court as irrelevant – See Ajakaiye v. Military Governor of Bendel State (1993) 9 SCNJ 242; Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676; Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661; Shaka v. Salisu (1996) 2 NWLR (Pt.428) 22 at 29. Thus a party cannot waive a situation where the Court clearly and apparently lacks jurisdiction – See Ugo v. Okafor (1996) 3 NWLR (Pt.438) 542 at 560; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt.170) 761 at 781 782; Ariori v. Elemo (1983) 1 SCNLR 1 (1983) 1 FRN 20 at 32 – 36. Consequently, in view of my above analysis, the contention of the respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, he 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. It is hereby discountenanced. I will at this stage refer to the unreported and earlier decision of this Court in Lt. Col. E.O. Anene v. The State (supra) the facts of which were on all fours with the present case and this Court held that the contention was a “misconception of the principles of jurisdiction of the Court as well as the doctrine of waiver by the learned counsel for the respondent because parties cannot by consent or otherwise confer jurisdiction on a court where the court has no jurisdiction to entertain the action – and that the failure of the appellant to raise objection at the trial, as to the membership of unqualified officers on the Court Martial is not a bar, waiver or an estoppel for the said appellant to raise the objection on appeal (see pages 14-15 of the judgment) – See also Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1981) 1 FNLR 179 at 199 – 201 (1981) 10 SC 1; Eze v. Okechukwu (1998) 5 NWLR (Pt.548) 43 at 53; and Akibu v. Oduntan (1992) 2 NWLR (Pt.222) 210 at 219. There is no reason why this Court will now depart from its earlier decision in Anene’s case (supra) which is on all fours with the facts and circumstances of the present case and which is also unassailable on the point.

In view of all my above considerations on issue 1 of the appellant’s brief, the said issue as framed in the brief, which is on jurisdiction, should be answered in the negative and resolved in favour of the appellant. Consequently the said issue and its relevant ground of appeal (i.e. ground 1) having succeeded are hereby so resolved in favour of the appellant.

With the success of the appellant’s issue on jurisdiction which is a fundamental issue that affects the backbone (or substratum) of the case at the Court Martial which has been shown to have no competence to adjudicate on the appellant, I do not think that it will be necessary to consider the appellant’s other two issue as formulated above. The said other two issues are dependent upon the failure of the 1st issue on jurisdiction which if found successful is capable of knocking down or rendering as nullity the whole proceedings of the Court Martial conducted without jurisdiction – no matter how well conducted they might have been. In other words, the appellant’s issues 2 and 3 presuppose that the Court Martial was competent and it had jurisdiction to try the appellant and to determine the case before it. Thus the essence and rationale of giving priority of treatment to the fundamental issue of jurisdiction which once raised should be dealt with and determined one way or the other before any other issue is to avoid an exercise in futility because the whole proceedings having been conducted in absence of (or without) jurisdiction have been rendered a nullity no matter how beautifully presented or well conducted they might have been. Consequently in the present case I will abide by this principle regarding the fundamental aspect or nature of the issue of jurisdiction which I found to be successful (under the 1st issue) and in order to avoid an exercise in futility, I will refrain from considering the other two issues of the appellant which relate to the conduct of the proceedings at the trial Court Martial.

In the circumstances and with the success of the appellant’s 1st issue on jurisdiction (and its corresponding grounds of appeal i.e. ground 1) I do not consider it necessary to proceed with the consideration of his other issues i.e. issues 2 and 3 – as it will amount to an exercise in futility. I will in the final analysis allow the appellant’s appeal under the 1st issue and thereby do so. The whole proceedings of the General Court Martial which sat at the Headquarters of 2nd Mechanized Division Officers Mess, Agodi, Ibadan on 16/9/96 – 27/12/96 conducted without jurisdiction amounted to a nullity. I hereby declare it to be so. Consequently, the conviction of the appellant by the said incompetent General Court Martial is hereby set aside and quashed. The said appellant is hereby acquitted.

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Other Citations: (1999)LCN/0572(CA)