The Nigerian Air Force V. Wing Commander T. L. A. Shekete (2002)
LAWGLOBAL HUB Lead Judgment Report
N. TOBI, J.S.C.
Wing Commander T. I. A. Shekete, the respondent in this appeal, was the 4th accused at the General Court Martial, bearing the acronym, GCM. He was arraigned along with eight other Air Force officers on 22nd July, 1996 on seven counts.
The case of the prosecution can be briefly stated. One of the nine officers charged raised requisition for cash in the total sum of N10,000,000.00 (Ten million naira). The sum was withdrawn from the bank account of the appellant. The money was handed over to one of the officers accused along with the respondent. The 6th accused in his written statement admitted receiving the money. He mentioned the various amounts distributed to the officers charged along with him. The officers included the respondent who was alleged to have been given the sum of N500,000.00 (Five hundred thousand naira) out of the N10,000,000.00 In. corroboration of the evidence of the 6th accused, warrant officer Paul Tungan, P.W.4, said that he was given some money by the 6th accused in an envelope to put inside the boot of the respondent’s car.
The respondent, in his written statement (Exhibit 11) denied conspiring with any person to share the N10,000,000.00. He said that during the period, that is around the first week of April, 1996, he was preparing to go to Saudi Arabia to perform the 1996 Hajj and so he seldom went to the office. He said that it was when he reported back to the office because he could not go to Hajj that he learnt about the N10,000,000.00 matter. He denied collecting any part of the alleged N10,000,000.00. The respondent was not found guilty of counts 1 and 2. He was found guilty of counts 3 to 7 and sentenced to a total of 23 years incarceration.
Dissatisfied, Wing Commander Shekete appealed to the Court of Appeal. That court allowed the appeal. The court made the following order in the last paragraph of the judgment:
“On the whole, my conclusion is that this appeal is meritorious. It is allowed. I set aside the judgment appealed against. In its place, I make an order striking out the charge against the appellant … I make an order discharging and acquitting the appellant on the counts brought against him.”
Dissatisfied, the appellant has filed this appeal. Briefs were filed and exchanged. The appellant formulated six issues for determination as follows:
“(i) Whether the applications and/or prayers in the appellant’s motion dated 30th November, 1998 satisfied the condition precedent to the hearing of his appeal against the decision of the General Court Martial as provided under sections 183 and 184 of the Armed Forces Decree, 105 of 1993 (as amended).
(ii) Whether the jurisdiction of the Court of Appeal to hear and determine the appeal against the judgment of the GCM was not ousted by the appellant’s (now respondent) failure to first obtain leave of the Court of Appeal as required under section 183 of the Armed Forces Decree 105 of 1993 (as amended).
(iii) Whether the power to convene a court martial, vested in the persons setout in section 131(1) and (2) of the Armed Forces Decree 105 of 1993 (as amended) cannot be delegated.
(iv) Whether the statement of a person who was not jointly charged with the accused person can rightly qualify as a statement that is subject to the provisions of section 27(3) of the Evidence Act.
(v) Whether the evidence of a person who was not jointly charged with the accused person, and which is against the said accused cannot suffice to secure the conviction of the respondent.
(vi) Whether the burden of establishing or otherwise substantiating the defence raised by the accused persons, who admitted receiving a share of the N10M allegedly stolen from the NAF that they thought it was a “thank you” gift from the retiring Chief of Air Staff was that of the prosecution or that of the accused persons who sought to rely on it or to take umbrage thereunder (like the respondent).
(vii) Whether the respondent (appellant in the court below) had established a credible and valid defence against all the evidence adduced in support of the charges against him before the General Court Martial (GCM).”
The respondent formulated the following two issues for determination:
“(i) Whether the Court of Appeal had jurisdiction to entertain the respondent’s appeal at the court below.
(ii) Whether the prosecution proved its case against the respondent as required by law having regard to the oral and documentary evidence adduced and accepted at the trial.”
Learned counsel for the appellant, Mr. Alade Agbabiaka submitted on issue no.1 that section 183 of the Armed Forces Decree, No. 105 of 1993 as amended by the Armed Forces (Amendment) Decree No. 15 of 1997 was not complied with as leave of the Court of Appeal to appeal against the decision of the General Court Martial was not sought. He also cited section 184(1) which provides that leave should be sought within forty days of the date of promulgation of the finding of the court martial. He referred to the motion dated 30th November, 1998 and argued that the motion was for leave to appeal out of time and not leave to appeal, which was required by section 183 of the Armed Forces Decree, 1993 as amended. Still on the motion for extension of time within which to appeal, learned counsel submitted that the court cannot grant a party a prayer or relief that was not asked for by him in his motion. To learned counsel, all the reliefs granted by the Court of Appeal on the respondent’s motion are limited to those prayed for therein by him.
On issue no.2, learned counsel submitted that failure on the part of the respondent to comply with such a fundamental condition precedent, ousts the jurisdiction of the court of Appeal and consequently renders as a nullity the entire proceedings before that court and the orders made in its judgment on 28th September, 2000. He cited Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6. Conceding that the issue was not raised and argued before the Court of Appeal, counsel submitted that being an issue or point of law on jurisdiction, the same can be raised at any time even for the first time in this court. He cited State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Ogunsina v. Ogunleye (1994) 5 NWLR (pt.346) 625; Shell Petroleum Development Co. Ltd v. Tiebo VII (1996) 4 NWIR (pt. 445) 657.
On issue no.3, learned counsel submitted that the Court of Appeal was wrong when it came to the conclusion that the authority to convene a general Court Martial cannot be delegated. He cited section 131(3) of the Armed Forces Decree and submitted that the subsection clearly and unequivocally allows for delegation of the power conferred by virtue of section 131 (I) and (2) of the Decree.
On issue no.4, learned counsel referred to page 72 of the record and submitted that although the Court of Appeal correctly stated the position of the law as provided in section 27(3) of the Evidence Act, the situation in this appeal is different as there were statements made by other persons who were not jointly charged with the respondent. He referred to the evidence of P.W.4 who, counsel said, was not jointly accused with the respondent.
On issue no.5, learned counsel submitted that P.W.4, not being a co-accused charged along with the respondent, was not subject to the limitation in section 27(3) of the Evidence Act. At worst, P.W.4 was an accomplice whose evidence is not excluded by law from being used in establishing the guilt and/or otherwise securing the conviction of the respondent, counsel submitted. He cited section 178(1) of the evidence act, Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 15 and Nwambe v. The State (1995) 3 NWLR (Pt. 384) 385.
Counsel contended that since P.W.4 was an accomplice, he was a competent witness for the prosecution whose evidence alone is sufficient in law to secure the conviction of the respondent, provided that the Judge Advocate administered the warning as stipulated under section 178(1 ) of the evidence act. He referred to pages 199 to 202 where the Judge Advocate provided the statutory warning required by the subsection. He cited R. v. Omisade (1964) NMLR 67; (1964) 1 All NLR 233 and Inspector-General of Police v. Edosomwan (1957) NRNLR 16 1.
Counsel contended that even if the Court of Appeal excluded the evidence and statement of the 6th accused as being that of a co-accused charged along with the respondent, the same argument will not avail in respect of P.W.4 as he is not a co-accused and his evidence as an accomplice is admissible and sufficient to secure the conviction of the respondent.
On issue no.6, learned counsel submitted that the Court of Appeal wrongly shifted the burden of proof that the N 10,000,000.00 was to be shared by the accused persons on the orders of the retiring Chief of Air Staff, as” a thank you gift for a loyal service” on the appellant. He argued that the burden was not consistent with the provisions of section 135 of the evidence act. To learned counsel, the burden of proving that the N10,000,000.00 received by the accused persons was not stolen but was a “thank you gift” from the retiring Chief of Air Staff, raised by some of the accused persons and which the respondent was said to be able to take umbrage under, is clearly and unambiguously that of the accused persons, that is, the defence who intend to rely on the same as their defence, and not on the prosecution.
Citing section 139 of the evidence act, learned counsel submitted that the mere assertion by some of the accused persons that they believed the N10,000,000.00 admittedly received and shared by them was a parting gift from the retiring Chief of Air Staff, without more in corroboration thereof, could not have sufficiently established that fact as to warrant the shifting of the burden on the prosecution to call the retired Chief of Air Staff or to call such other evidence to rebut the same, the prosecution having successfully discharged its own burden of establishing that the money was taken by the accused persons without the authority, consent and approval of the NAF, and with an intention to cheat and otherwise deprive the NAF of the said amount
On issue no. 7, learned counsel submitted that the alibi pleaded by the respondent was not a complete one because he did not say in evidence that he was completely away from office at the material time but that he seldom came to the office. He submitted that the partial alibi cannot be taken as a complete and total defence that he was away from office at the material time that the offences were committed. The fact that the respondent did not proceed on the holy pilgrimage in Saudi Arabia further negated the general alibi, learned counsel argued.
Dealing with exhibit 11, the written statement of the respondent, counsel submitted that it was not a specific denial, it being not specific to the peculiar evidence adduced against him with respect to the charges before the General Court Martial (GCM). With regard to the charge of disobeying standing orders contrary to section 576(1) of the Armed Forces Decree No.105 of 1993, learned counsel recalled that one of the defences raised by the respondent was that he never operated as “Taiwo Lateef Adamson” but as Wing Cdr. T. L. A. Shekete. Counsel pointed out that the international passport tendered in evidence by the respondent (Exhibit E) showed his names as ‘Taiwo Lateef Adamson Shekete”
Counsel observed that the respondent used the various names for different purposes.
Learned counsel finally submitted that the respondent did not advance credible defence before the GCM in rebuttal of the charges against him and as such, the judgment and sentences entered against him by the GCM were in order and justified and ought not to have been set aside. He urged the court to allow the appeal and set aside the judgment of the Court of Appeal.
Mr. Akin Kejawa, counsel for the respondent, submitted on issue no. I, which curiously commenced from page 15 of the respondent’s brief, that the appellant’s argument on pages 7 to 10 that the Court of Appeal lacked the jurisdiction to entertain the respondent’s appeal at the Court of Appeal because of the failure to apply for and obtain the leave of the court, is not only untenable but also totally misconceived. Counsel claimed that the respondent applied for and obtained the leave of the Court of Appeal against the decision of the court martial as required by sections 183 and 184(4) of the Armed Forces Decree No.105 of 1993 as amended.
Referring to the motion dated 30th November, 1998 and filed on the same day, learned counsel submitted that prayer (b) is all encompassing and all embracing. He said that at the hearing of the motion on notice, counsel for the respondent (who was the appellant at the Court of Appeal) conformed with the “three prayer rule” in Odofin v. Agu ( 1992) 3 NWLR (Pt. 229) 350 and C.C.B. (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630.
Conceding that the motion on notice did not specifically state that it was brought under sections 183 and 184(1) and (4), learned counsel submitted that the omission did not in law derogate from the competence of the application and the prayers therein. After all, it is settled law that a relief or remedy which is provided for by law cannot be denied the applicant simply because the has applied for it under wrong law, learned counsel contended. He cited Falobi v. Falobi (1976) 1 NMLR 169 and Obunhense v. Erhahon (1993) 7 NWLR (Pt. 383) 22.
On issue no.2, learned counsel submitted that by reason of the presumption of innocence created in favour of an accused by section 33(5) of the 1979 constitution (now section 36(5) of the 1999 constitution) and also by reason of the adversary system practiced in this country, the law places a legal burden on the prosecution in criminal trials to prove its case against the accused beyond reasonable doubt. He cited section 138(1) of the evidence act and the following cases: Woolmington v. D.P.P (1935) AC 426; R. v. Lawrence (1932) II NLR 6 at 7 and R. v.Eka (1945) 11 WACA 39 at 40.
Although proof beyond reasonable doubt is not proof beyond all doubt, nonetheless, proof beyond reasonable doubt requires that all the ingredients of the offence charged must be proved, counsel contended. He submitted that the prosecution woefully and dismally failed to discharge this burden.
Learned counsel took most of the counts the respondent was convicted on, in the light of the evidence, particularly the evidence of the P.WA and the 6th accused person, and submitted that the prosecution did not discharge the burden of proof. He cited Mohammed v. The State (199I) 5 NWLR (Pt. 192) 438.
Emphasising the importance of “welfare gift” in the military, learned counsel submitted that an in-depth knowledge of the military organization reveals that welfare for officers and soldiers is on the priority list of every commander worth his name and command.
Citing the unreported case of Ex Brig. Gen. Gabriel Anyankpele v. The Nigerian Army AFDAC/96/NA/1 (unreported) delivered on 16th May, 1996, learned counsel submitted that welfare scheme as an instrument of command was given judicial recognition in that case. He took time to narrate the facts and the decision of the case. With respect, I do not see the relevance of the case in this appeal.
He submitted that the welfare gift is at the discretion of the commander and the prosecution was in error to query the discretion. He also faulted the court martial for coming to the conclusion that the AVM Femi John Femi was not authorised to disburse such large sums of money for welfare purposes. It was the duty of the prosecution to rebut the defence of “welfare gift” when it was raised at the trial by the accused officers. He cited Aguda, Law and Practice Relating to Evidence in Nigeria, page 251, paragraphs 21 to 23, and the cases of R. v. Essien; 4 WACA 112 at 113 and The State v. Ajie (2000) 11 NWLR (Pt. 678) 434; (2000) 7 SC (Pt. 1) 23.
Counsel submitted that it is not the duty of the accused in criminal prosecution to prove his innocence. The only evidential burden placed on him is to raise a doubt in the prosecution’s case and once that is created it must be resolved in favour of the accused. He cited section 33 (5) of the 1979 constitution, section 138(3) of the evidence act and the cases of Alabi v. The State (1993) 7 NWLR (Pt. 307) 5 11 and Marka v. The State (1998) 2 NWLR (Pt. 537) 294.
The quantum of evidence required to raise reasonable doubt may be scanty or minimal; it may also be abundant but certainly once raised it must be resolved in favour of the accused, counsel submitted. He cited Ozaki v. The State (1990) 1 NWLR (Pt.124) 92, (1990) All NLR (Reprint) 94 at 107. Contending that AVM Femi John Femi was a vital witness the prosecution ought to have called, counsel argued that the Court of Appeal was absolutely correct in law to hold that failure to call him was fatal to the prosecution’s case. He cited Onah v. The State (1985) 2 NWLR (Pt. 12) 236; Opalo v. The State (1977) All NLR (Reprint) 313 and section 149 (d) of the Evidence Act. He also submitted that failure of the prosecution to call AVM Femi John Femi was a deliberate design to suppress evidence in favour of the accused persons at the trial. Citing Mohammed v. The State, (supra), learned counsel submitted that where evidence favourable to all accused person(s) is suppressed, the trial is a nullity.
On the defence of alibi. learned counsel submitted that failure on the part of the prosecution to investigate and rebut the defence entitles him to a discharge and acquittal. He cited Queen v. Eleighe, vol. 10 Digest of Supreme Court Cases, p.2 12 and Mangai v. The State (1993) 3 NWLR (Pt. 2 79) 108. In view of the fact that the offence of receiving stolen property alleged against the respondent was said to have been committed on or about 2nd April, 1996, it is compelling and imperative to fix the respondent with that date in order to prove its case against the respondent beyond reasonable doubt as required by law. It is not sufficient for the appellant to describe the alibi raised by the respondent as a partial and/or general one as such an approach does not relieve him of the legal burden of proof placed on him, counsel argued. The failure of the prosecution to investigate and rebut the defence of alibi raised by the respondent both at the trial and extra-judicial statement entitles him to a discharge and acquittal, counsel submitted. He cited Ebre v. The State (2001) 12 NWLR (Pt. 728) 617.
Dealing specifically with counts 3, 4, and 5, learned counsel submitted that there is no modicum of evidence whatsoever by the prosecution to prove the allegations. He examined the evidence of P.W.4 and the statement of Sqn. Ldr. Olatunji in exhibit 13 and submitted that no case was made against the respondent.
On count 6, learned counsel cited the case of Carlen (Nig) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) 631 and submitted that no case was made against the respondent.
On count 7, learned counsel argued that there was no evidence that the company was ultimately registered nor did the prosecution identify the office from which the company operated. He submitted that in view of the fact that the statement of share capital which was found in possession of the respondent was signed in August 1988, and the respondent was charged and tried in April 1996, the offence is statute barred under section 169(1) of the Armed Forces Decree No. 105 of 1993.
Counsel also submitted that it cannot be an offence to own shares in a company as that will be violative of the right to own property conferred on every citizen of this country under section 40 of the 1979 constitution (now section 43 of the 1999 constitution). On the count as it affects the contravention of Administrative Instructions S/No. 3 dated February 1979, learned counsel argued that failure to tender the Administrative Instructions shows that they never existed. He argued that where a party failed to produce a document in its custody, the presumption is that the document if produced at the trial will be against him. Counsel cited section 149(d) of the Evidence Act; Carlen (brig.) Ltd. v. University of Jos (supra); Onyeukwu v. The State (2000) 12 NWLR (Pt. 681) 256 and Opolo v. The State.(1977) All NLR (Reprint) 313 at 317. He urged the court to dismiss the appeal.
I would like to make an observation on the brief of the respondent as it affects the stuff on pages 3 to 14. All the pages are devoted to the examination of the power to convene a General Court Martial and the relevant aspect of delegation of power to convene the General Court Martial. What bothers me is that the very important argument is not tied to an issue, and so it stands alone. The two issues start from page 15 of the brief.
The stuff examined in the respondent’s brief from pages 3 to 14 is the basis of issue no.3 in the appellant’s brief. Accordingly, I expected counsel for the respondent to either adopt issue no.3 of the appellant’s brief in respect of his arguments on pages 3 to 14 or formulate his own issue. He did not do that. He merely argued at large the power to convene a General Court Martial. I expected him to relate the discussion to the relevant issue formulated by counsel for the appellant.
The rules of this court clearly provide for the format and component parts of a brief. In Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63, the Supreme Court had cause to call the attention of both counsel for the appellants and the respondents to order 6, rule 5(1) of the Supreme Court Rules, 1985. The court advised that the format for the briefs of argument which the appellants and respondents are enjoined to file should follow the guidelines laid down in the rules. Obaseki, JSC said at page 76:
“The briefs of arguments filed by both the appellants and the respondents contain and show no evidence of any knowledge of the 1985 Supreme Court Rules, order 6 rule 5( 1 ) relating to the filing of briefs of argument in this appeal. I hope that in future counsel will pay more attention to the requirement of the rules.”
The stuff on pages 3 to 14 does not qualify as an introduction and cannot therefore be so treated. The stuff, in my humble view, clearly creates an issue in this appeal and a very important issue for that matter. In the light of the decisions in Archbode Engineering Limited v. Water Resources Hydro Technique Wassertechnik, A.G. and Another (1985) 3 NWLR (Pt. 12) 300 and Engineering Enterprise of Niger Contractor Co. of Nigeria v. The Attorney-General and others (1988) 3 NWLR (Pt. 80) 1, I expected learned counsel to formulate an issue in respect of pages 3 to 14. Sadly, he thought differently.
What is the legal consequence of the respondent not formulating an issue in respect of the stuff on pages 3 to 14 Is the omission on the part of learned counsel for the respondent to formulate an issue on pages 3 to 14 enough to throw out the brief of the respondent In Orji v. Zaria Industries Ltd. and Another (1992) 1 NWLR (Pt. 216) 124, Akpata, JSC said at page 146:
“It is noted that in the respondents brief issues for determination were not formulated. Neither were the issues proffered by the appellant adopted … Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, and arguments canvassed therein would therefore be of no consequence. The brief becomes irredeemably bad if, as in this case, arguments are not based on any issue or semblance of them.”
Although the Supreme Court held that failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, it is necessary to note that the respondent’s brief contains two issues. It is therefore not like Orji where the respondent did not file any issue. The problem with the respondent’s brief is that of tidiness of arrangement than anything else. Learned counsel argued an issue which he failed to identify. I should be able to deal with the argument on pages 3 to 14 of the brief along with issue no.3 of the appellant’s brief.
In view of the fact that the issue of leave affects the jurisdiction of the Court below, I should take it first. Section 183 of the Armed Forces Decree No. 105 of 1993 as amended by the Armed Forces (Amendment) Decree No. 15 of 1997 provides as follows:
“Subject to the following provisions of this part, an appeal shall lie from decisions of a court martial to the Court of Appeal provided that an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a court martial involving a sentence of death.”
Furthermore, section 184(1) of the Armed Forces Decree No. 105 of 1993 as amended by the Armed Forces (Amendment) Decree No. 15 of 1997 provides as follows:
“Leave to appeal to the Court of Appeal shall not be given except in pursuance to an application in that behalf made by or on behalf of the applicant and lodged, subject to subsection (2) of this section, within forty days of the date of promulgation of the finding of the court martial in respect of which the appeal is brought with the registrar of the Court of Appeal being an application in the prescribed form and specifying the grounds on which leave to appeal is sought and such other particulars, if any as may be prescribed.”
As it is, the requirements of sections 183 and 184(1) of Decree No. 105 of 1993 as amended by Decree No.15 of 1997 are clear. By section 183, leave of the Court of Appeal must be sought before an appeal can lie from a court martial to the Court of Appeal. Leave is however not necessary if the decision of a court martial involves a sentence of death. That is the proviso. The proviso is inapplicable as none of the sentences passed on the respondent involved a sentence of death.
Section 184(1) leans on section 183. The subsection gives the time within which all appeal should be lodged. It is forty days from the date the court martial promulgated its findings. In other words, an appeal lodged after forty days of the promulgation of the findings of the court martial, will be incompetent.
In the motion dated 30th November, 1998 and filed on the same day, counsel for the respondent, Mr. Fred Agbaje, asked for the following prayers:
“(a) An order of extension or enlargement of time within which the appellant is to appeal.
(b) Leave to appeal out of time
(c) Extension of time within which the appellant is to file his notice of appeal.
(d) An order directing a departure from the rules of this honourable court.
(e) An order that this appeal be heard on the bundle of documents (vol. 1-5) being the record of proceedings of a General Court Martial.” (See page 1 of the record of appeal).
The following is recorded on page 52 of the record of appeal:
“APPEARANCE: Mr. Fred Agbaje for the appellant.
REGISTRAR: The respondent was served on 15/4/99.
AGBAJE: This application filed on 30/11/98 seeks the following
(1 ) An extension of time within which to seek leave to appeal.
(2) Leave to appeal.
(3) Extension of time to appeal.
(4) Departure from the rules so that the appeal can be heard on exhibits C1 to C5. I rely on the affidavit in support of the application
COURT: Time within which to seek leave to appeal is extended till today. Leave to appeal is granted. Time to appeal is extended by 3 days from today. The appeal when filed is to be heard on the bundle of documents annexed and marked exhibits C1 to C5. Application for bail is adjourned to 29/4/99.”
It is clear from the above that although the motion did not ask for leave to appeal, the court below granted the applicant such leave in the following words:
“Leave to appeal is granted.”
Prayer (b) of the motion was for leave to appeal out of time and not leave to appeal.
There is a world of difference between leave to appeal and leave for extension of time to appeal, which is leave to appeal out of time. Leave to appeal and leave for extension of time to appeal are not synonyms or procedures of a similar or like content. An application or motion for leave to appeal presupposes that appeal, by the relevant rule, is not as of right. The appellant therefore seeks permission of the court to file an appeal. On the other hand, leave for extension of time to appeal presupposes that the statutory time for appeal has expired and so the appellant seeks permission of the court to extend time within which he can appeal. Both counsel and the courts must appreciate the above difference in our adjectival law. I see in this case learned counsel misleading the court below. I say this because he indicated to the court below when he moved the motion that one of the prayers was for leave to appeal when the motion did not contain such prayer. Unfortunately, the court below took the words of counsel on their face and made the order. It is also possible that counsel was genuinely in error. Whatever way one looks at the matter, the order was not borne out from the prayer and that is my concern.
It is elementary law that a court of law cannot grant a party relief not sought. A court of law cannot grant an applicant prayer not sought. A court of law can only grant a relief or prayer sought. The moment a court of law grants a relief or prayer not sought by the party, it expands the boundaries of the litigation and unnecessarily instigates more litigation to the detriment of the parties, and for no reason at all. The litigation is for the parties and not the court. Therefore the court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the court has no jurisdiction to set up a different or new case for the parties. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Ayanboye v. Salogun (1990) 5 NWLR (Pt. 151) 392; Akinbobola v. Prisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt.167) 270; Jeric (Nig.) Ltd. v. U.S.N. Plc (2000) 15 NWLR (Pt.691); Akinterinwa v. Oladunjoye (2000) NWLR (pt. 659) 92 SC.
What is the legal effect of the respondent not seeking leave to appeal against the decision of the GCM The legal effect is that the appeal from the decision of the GCM to the Court of Appeal is incompetent and therefore null and void ab initio. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Turbury Construction Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64; Deacon Oshatoba v. Chief Olujitan (2000) 5 NWLR (Pt. 655) 159 and Abidoye v. Alawode (2001 ) 6 NWLR (Pt.709) 463; FWLR (Pt. 43) 322. Accordingly, the judgment by the court below is a nullity and I so declare.
As far as I am concerned, section 183 has nullified the appeal. However, let me also take the impact of section 184(1) for whatever the exercise is worth. The record shows that the findings of the court martial were promulgated way back on 21st October, 1996. The motion for extension of time within which to appeal against the findings of the GCM was filed on 30th November, 1998. The motion was moved and granted on 19th April, 1999. Between 1996 when the GCM promulgated its findings and 1999 is three years. Section 184(1) talks of forty days. Perhaps that was why respondent asked for extension of time to appeal. He ought to have complied with section 183 First. He did not. Whatever way one looks at the matter, either from the angle of section 183 or from the angle of section 184(1), the appeal from the GCM to the Court of Appeal is incompetent. I say this at the expense of prolixity.
In the circumstances, I allow the appeal. I hereby set aside the decision of the Court of Appeal and strike out the appeal before that court on the ground that it is incompetent.
SC.362/2001