Osaji V. Nigerian Army (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Lead Judgment)

The Appellant was enlisted into the Nigerian Army on 5/5/2009 as a non-commissioned officer and upon his induction into operation Lafia Dole, he was deployed to Sector 2, Zabarmari village as a rifle man.

On 14/5/2016 at about 10:22am, one Sgt. Innocent Ototo (97NA/45/6205), the Guard Commander at the duty post where the Appellant was deployed, raised an alarm that his phone was missing.

He accused 3 young boys, one of which is deceased, of stealing his phone. The 3 boys were apprehended, detained, flogged and subjected them to other forms of punishment under the supervision of Sgt. Innocent Ototo.

The deceased, who admitted stealing the phone, though could not lead them to where he hid it, was subjected to further punishment and robbing of pepper all over his body from 1:00pm and died at about 6:00pm on same day while in custody of the officers including the Appellant.

Consequently, the Appellant was charged with the murder of the deceased before the General Court Martial, which convicted the Appellant of manslaughter and sentenced him to 20 years’ imprisonment. On appeal by the Appellant to the lower Court, his appeal was dismissed, hence this appeal. The Appellant has distilled 2 issues for determination thus:

1. Whether the lower Court was right when it held that the Appellant was investigated by his Commanding Officer (CO) in the manner prescribed by law before he was arraigned at the General Court Martial (GCM); and if not so whether the Appellant’s right to fair hearing was breached in the manner in which investigation was conducted.
2. Whether in view of the evidence led at the trial GCM, the lower Court was right to have convicted the Appellant without considering the nexus between the acts of the Appellant and the three other soldiers in respect of the alleged death of the deceased.

PRELIMINARY OBJECTION:
The Respondent has however come up with a preliminary objection to the competence of the Appellant’s appeal predicated on the grounds that:

1. The judgment of the Court of Appeal, Gombe Judicial Division (Court below) coram Jummai Hannatu Sankey JCA, E.O. Williams-Dawodu JCA and Muhammed Mustapha JCA, delivered in Appeal No. CA/G/133/C/2019 on 30th June, 2020, against which the Appellant has filed a Notice of Appeal dated 22nd July, 2020, was one in which the Court below affirmed the judgment of the General Court Martial sitting at 7 Division of the Nigeria Army Maiduguri, Borno State, delivered on December 15th 2017, by the President of the Court Martial, Brigadier General G.O. Adesina and confirmed by the confirming authority, the Chief of General Staff on 25th May, 2018.
2. The three (3) grounds contained in the Appellant’s Notice of Appeal dated 22nd July, 2022, necessarily involve an allegation of issues of law and fact, and mainly facts, and hence grounds of mixed law and facts.
3. By the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) decisions of the Court below involving issues of mixed law and fact mandatorily require leave of either the Court below or the Supreme Court in order to render such notice of appeal competent in so far as the grounds of appeal are not based on grounds of law alone.
4. The Appellant’s Notice of Appeal dated 22nd July, 2020, against the decision of the Court below was filed without leave of either the Court below or of this Honourable Court, first sought and obtained and same therefore renders the Notice of Appeal dated 22nd July, 2020, incompetent and/or a nullity in law.

5. Also, ground 1 of the Appellant’s Notice of Appeal dated 22nd July, 2020, is not a ground of appeal against the ratio decidendi of the Court below. The ground is therefore incompetent.
6. Ground 2 of the Appellant’s Notice of Appeal dated 22nd July, 2020, is a new issue that did not arise out of the judgment delivered by the Court below and no leave of either the Court below or of this Honourable Court was first sought and obtained.
7. Ground 3 of the Appellant’s Notice of Appeal dated 22nd July, 2020, is an omnibus ground of appeal. The ground of appeal does not challenge any of the findings made by the Court below on the evidence led before the trial Court. Ground 3 is therefore vague and incompetent.

It is the Respondent’s Counsel’s submission that the 3 grounds of appeal including the omnibus ground are incompetent and liable to be struck out. He cited in support B.A.S.E NIGERIA LIMITED V. FAITH ENTERPRISES LIMITED (2010) 4 NWLR (PT.1183) AT 128-129. He therefore urged this Court to strike out the notice of appeal filed on 22/7/2020.

It is contested by the learned Counsel to the Appellant that ground 1 of the Appellant’s notice of appeal “reveals the misunderstanding by the lower Court of the implies of Section 123 of the AFA vis-a-vis the defectiveness or otherwise of the charge…” Ground 2 of the “Appellant’s Notice of Appeal deals also with misunderstanding or misapplication of Section 291 of the AFA with regards to who a Commanding Officer is…” He therefore prayed that the Notice of Preliminary objection be dismissed.

The Appellant’s grounds of appeal were couched thus:
GROUND ONE:
The learned Justices of the lower Court erred in law when they held as follows:
“the law is trite that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure or the like shall be taken immediately after the charge has been read over to the accused and not later.” And this occasioned a miscarriage of justice.

GROUND TWO:
The learned Justices of the lower Court erred in law when they held thus:
“The oral evidence of PW1 and PW2 also buttressed the evidence of PW3 that an investigation was duly conducted wherein they were invited by the Military police (PW3) and they wrote their respective statements giving the accounts of what transpired which led to the demise of the deceased.

These go further to confirm that an investigation of the allegation was carried out by the (PW3) under the authority of the acting GOC of 7 Division NA being the commanding officer of the Appellant in line with Section 123 of the AFA (supra) before the Appellant was arraigned before the trial GCM for trial for the offence of murder” and the above occasioned a miscarriage of justice.

GROUND THREE:
The judgment of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence.

Going through the whole gamut of the judgment of the lower Court, it can be easily sifted that ground 1 of the Appellant’s Notice of Appeal dated 22nd July, 2020, is not a ground of appeal against the ratio decidendi of the Court below.