The Nigeria Army V Sgt. Asanu Samuel & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Ibadan in appeal No. CA/I/134/2002 delivered on the 13th day of December, 2006 in which the court allowed the appeal of the present respondents against the judgment of the General Court Marshal which found the respondents guilty and sentenced them to various terms of imprisonment. The lower court set aside the decision of the General Court Marshal and entered a verdict of not guilty, discharged and acquitted the respondents, resulting in the instant appeal.

The respondents were soldiers serving with the 322 Field Artillery Regiment, Benin City and were deployed to NNPC Depot, Benin City for security service. Sometime in 1995, the respondents were arraigned before a General Court Martial convened by Brigadier General Patrick Newton Aziza who acted as the General Officer commanding 2 Mechanized Division, charged with the offence of conduct prejudicial to military discipline contrary to Section 103(1) of the Armed Forces Decree, 1993. The respondents were alleged to have had knowledge of a plan by L/Cpl. Macaulay (FNA/6005) to kill late Lt. E. S. Ibelegbu (N/0599) over a jerry can of kerosene seized from the L/Cpl. Macaulay. It is the case of the prosecution that although the respondents were aware of the plan, they did not do anything to avert the commission of the crime. Following the verdict of the General Court Martial, the 1st, 2nd and 3rd respondents were dismissed from the Nigeria Army while the 4th respondent was sentenced to two years imprisonment.

The issues for determination of the appeal identified by learned counsel for appellant, PROF YEMI AKINSEYE GEORGE in the appellant’s brief of argument filed on 11th October, 2011 are as follows:-

“1. Whether the Court of Appeal had jurisdiction to proceed with the appeal when the notice of appeal was manifestly defective. (Grounds 7 and 8).

2. Whether it is not proper to convict on the evidence of a tainted witness where there is no corroborative evidence. (Grounds 4 and 6).
3. Whether by virtue of Section 152(1)(a) of the Armed Forces Decree, 1993, it is not proper for a convening officer in a court martial proceedings to act as a confirming officer. (Ground 5)
4. Whether the lower court was right in not affirming the conviction and sentence of the respondent when the prosecution had proved their case beyond reasonable doubt. (Grounds 1, 2 and 3)

The above issues have also been identified, though couched differently by learned counsel for 1st – 3rd respondents, BOLA AIDI ESQ in the brief of argument filed on 5th December, 2011 while M.N.O OLOPADE ESQ of counsel for 4th respondent adopted the four issues formulated by counsel for appellant in his brief of argument filed on 29th November, 2011.

It is the submission of counsel for appellant, in respect of Issue No. 1, that the notice of appeal filed by the respondents in the lower court was fundamentally defective which divested the court of the requisite jurisdiction to hear and determine the appeal in that the notice of appeal which was dated the 14th day of February, 2005 and filed on the 16th day of February, 2005 was not signed by the appellants therein but by N.O.O. OKE & CO. and that the amended notice of appeal filed on 21st June, 2005 was not signed by appellants but by N.O.O. OKE ESQ.

It is the further submission of counsel that the notice of appeal was a joint notice of appeal rather than individual notices of appeal and that a firm of solicitors cannot sign any court process under the laws and relevant rules, let alone a notice of appeal as in the instant case.

Learned counsel then referred the court to the provisions of Order 4, Rule 4(1) of the Court of Appeal Rules 2002 being the relevant/applicable Rules to buttress his contention that only an individual appellant is envisaged and cited and relied on the case of Adekaye vs FRN (2005) ALL FWLR (Pt. 252) 514 at 539: Uwazurike vs A-G Federation (2007) All FWLR 514 at 539.

It is also the contention of counsel that by the provisions of Section 3 of the Court of Appeal Act, Cap 75 LFN 1990, the person to sign a notice of appeal is an individual, not a corporate entity, such as N.O. O. Oke & Co. relying also on the case of Nwani vs Bakari (2005) ALL FWLR (Pt. 281) 1803 at 1822: that only a legal practitioner registered in the Roll can sign, file a notice of appeal, in an appropriate case, not a firm of solicitors, relying on New Nigeria Bank Plc vs Declac Ltd (2004) ALL FWLR (Pt. 288) 606: Thomas vs Maude (2007) All FWLR (Pt. 361) 1749 at 1762; First Bank Plc vs Maiwada (2003) FWLR (Pt. 151) 2001.

Learned counsel further contended that the subsequent amendment of the notice of appeal is of no moment as it could not have cured the defect, and urged the court to resolve the issue in favour of appellant and set aside the judgment of the lower court.

On his part, learned counsel for 1st – 3rd respondents submitted that the provisions of Order 4 Rules 3(1) and 4(1) relied upon by counsel for appellant do not apply to the respondents by virtue of the provisions of Order 4 Rule 1 of the said Court of Appeal Rules, 2002, which provision excludes appeals from court martial and matters related thereto; that the words of the order are clear and should be given their plain meanings; relying on Ojokolobo vs Alamu (1987) 3 NWLR (Pt. 61) 377 at 402: that the Rules of the Court of Appeal not having made provisions to govern filing of appeals from Court Martial, the dictates of justice becomes the determining factor.

Referring to the provisions of Order 1 Rule 19(4) of the Court of Appeal Rules 2002, learned counsel further submits that the lower court is even empowered to consider any appeal “notwithstanding that no notice of appeal or respondent notice has been given in respect of any particular part.”

Learned counsel also contends that the Court of Appeal can entertain appeals in the interest of justice in criminal matters notwithstanding the signing of the notice of appeal by a firm which was later amended by leave of the court; that the mistake of counsel should not be visited on the litigant, relying on Iroegbu vs Okwordu (1990) 6 NWLR (Pt. 159) 643 at 667 and urged the court to resolve the issue against the appellant.