Sgt. Akawu Bala v. Nigerian Army (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal Kaduna Division Coram: Bdliya, Kalio and Adefope-Okojoe, JJCA delivered on 17th day of February, 2017 wherein it declared the proceedings at the trial court (General Court Martial) a nullity but went ahead to hold that it cannot discharge and acquit the defendant as that will amount to validating the decision of a court which is a nullity.

It is against this that the appellant filed his notice of appeal to the Supreme Court containing two grounds of appeal which was filed on the 16th of March, 2017.

The facts that led to this appeal are as follows:

The appellant at all times material to this case was a Sergeant in the Nigerian Army. On or about the 9th day of December 2012, the appellant while on duty at African Petroleum (AP) filling station at Sabon Tasha, Kaduna, shot at one Isa Mohammed (now deceased) with an AK47. Isah Mohammed later died at St. Gerald’s Catholic Hospital, Kaduna the following day.

The appellant was arraigned before General Court Martial, Kaduna (hereinafter called the trial court) on a two count charge, to wit: the offences by or in relation to sentries watch, e.t.c punishable under section 50(1)(d) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria 2014 and murder punishable under section 106(a) of the Armed Forces Act, Laws of the Federation of Nigeria, 2014.

At the conclusion of the Court Martial, the appellant was convicted and sentenced on count 1 to be reduced to the rank of Cpl and death with respect to count 2. The decision of the General Court Martial was confirmed by the appropriate superior authority. The appellant received notification of the confirmation of the finding of the trial General Court Martial on the 26th June, 2014 when he was processed to the civil prisons in Kaduna.

The appellant being dissatisfied with the decision of the General Court Martial filed an appeal to the Court of Appeal, Kaduna. The appellant’s appeal to the Court of Appeal (hereinafter called the court below) was partly allowed, the judgment of the trial court was set aside on grounds that the charge sheet having not been properly signed by the appellants commanding officer as required by law rendered all proceedings predicated on that charge sheet a nullity.

In conclusion, the court went on to hold on page 319 of the record that “Having found the charge sheet to be a nullity, it follows that the proceedings based on it including the judgment of the General Court Martial are equally incurably bad. In consequence, I find that the appeal has merit. The appellant however cannot be discharged and acquitted as that will amount to validating the judgment that is a nullity. The judgment of the General Court Martial is hereby set aside.

The purpose of this appeal is that the appellant wants this court to discharge him and not subject him to a fresh trial by virtue of section 193 of the Armed Forces Act. The sole issue is expressed in the appellants brief settled by Dr. R. O. Atabo, SAN as follows:

Whether the decision of the lower court that the appellant cannot be discharged and acquitted was right having allowed the appeal and held the charge sheet and judgment of the General Court Martial to be a nullity and whether the judgment of the lower court does not amount to a denial of the appellants fundamental right and thereby occasion a miscarriage of justice in the circumstance of this case considering the provisions of section 193 of the Armed Forces Act Cap. A 20 LFN, 2004.

The respondent’s brief settled by Isaac Udoka states the sole issue as follows:

Assuming that the lower court was right when it declared the trial of the GCM a nullity, whether the appropriate order to make in the circumstance was not to order a fresh trial and to keep the appellant under detention bearing in mind the nature of the offence?

Sole issue