The Nigerian Air Force V. Wing Commander T.L.A. Shekete (2002)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The appellant herein brought an application praying the court for the following specific orders:

“1. An order of extension of time to seek leave to appeal on grounds other than grounds of law against the judgment of the Court of Appeal delivered on the 28th of September, 2000.

2. An order for leave to appeal on grounds other than grounds of law.
3. An order for extension of time to appeal on grounds other than grounds of law particularly in respect of the ground iv.
4. Leave to amend the notice of appeal dated the 27th day of October, 2000 by substituting the proposed amended notice of appeal dated the 27th of October, 2000 (sic).
5. An order deeming the amended notice of appeal dated the 1st day of November, 2001 (sic) as having been duly and properly amended and duly filed and served.”

On being served with the motion papers the respondent, through his counsel, A. Kejawa, Esq., filed a notice of preliminary objection to the effect that –

” … the appeal filed by the Nigerian Air Force, herein the appellant/respondent is incompetent and should be struck out for want of jurisdiction.”

The grounds upon which the objection was raised are:

“(a) that there is no right of appeal conferred on the appellant/respondent and/or the Attorney-General of the Federation either by statute or constitution in respect of matters relating to a trial by a court martial.

(b) that the Nigerian Air Force, herein the appellant was neither a party to the proceedings at the General Court Martial nor at the Court of Appeal.

(c) that the Nigerian Air Force, herein the appellant, and/or its counsel having not obtained that fiat of the Attorney-General of the Federation lacks the competence to bring this appeal.

(d) that by reasons of sub-paragraphs (a) – (e) above, this appeal is incompetent and should be struck out for want of jurisdiction.”

The notice was supported with an affidavit sworn to by the respondent in which he deposed, inter alia, as follows:

“2. That I was a serving officer with the Nigerian Air Force in the rank of a wing commander until the 21st day of October, 1996 when I was purportedly tried and convicted for sundry offences along with eight (8) other officers by a General Court Martial purportedly convened by the then Chief of Air Staff.

3. That having been dissatisfied with my trial, conviction and sentence by the said General Court Martial, I appealed to the Court of Appeal (Lagos Division) against same.
4. That the Court of Appeal in a unanimous judgment delivered on Thursday the 28th day of September, 2000 allowed my appeal and discharged and acquitted me on all the counts.
5. That I know as a fact that the appeal was defended by one I.T. Abdulsallam attached to the legal department of the Ministry of Defence from the office of the Attorney-General of the Federation.

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8. That I know as a fact that the Nigerian Air Force, herein the appellant was not a party to the proceedings either at the General Court Martial or at the Court of Appeal.”

There is a counter affidavit sworn to by Jimoh Abdulkadir Adamu, a legal practitioner in the legal unit of the Ministry of Defence and, incidentally, junior counsel for the appellant in these proceedings.