The Nigerian Army V. Lt. Patrick Dodo (2012)
LAWGLOBAL HUB Lead Judgment Report
M. MUKHTAR, J.S.C
This is an appeal against the decision of the Court of Appeal, Lagos Division, which affirmed the conviction of the appellant by the General Court Martial.
In the said court, the three counts charge against the appellant and his co-accused were as follows:-
“(1) Charge one:
Statement of offence: Conspiracy to steal contrary to section 516 of the criminal code Act and punishable under section 114 of the Armed Forces Decree 1993.
Particulars of offence: In that he at D.M.P. Ikoyi on or about May, 1998 conspired with others to steal the sum of N8.9 Million, being property of the Federal Government of Nigeria.
(2) Charge two:
Statement of offence: Stealing, contrary to and punishable under section 66(a) of the Armed Forces Decree, 1993.
Particulars of offence: In that he at D.M.P. Ikoyi on or about May, 1998 stole the sum of N8.9 Million being properly of the Federal Government of Nigeria.
(3) Charge three:
Statement of offence: Making of false documents contrary to and punishable under section 90(a) of the Armed Forces Decree 1993.
Particulars of offence: In that he at D.M.P. Ikoyi on or about May, 1998 connived with others to illegally include 53 fake ex-trainees in a pay schedule thereby defrauding the Federal Government of Nigeria of N8.9 Million.”
The General Court Martial after evaluating the evidence before it found the appellant and his co-offenders guilty as follows:-
“The court hereby finds Lt. Col. Yakubu, Lt. Dodo, Lt. Mohammed and Sgt. Goho guilty of the offences of conspiracy to steal N8.9m and stealing same property of the Nigerian Armed Forces.
Lt. Dodo and Lt. Mohammed guilty on the count of making false document. Lt. Col. A. O. Yakubu and Sgt. Goho are discharged on this count of making of false statement. All findings are subject to confirmation.”
After the mitigation of punishment, the General Court Martial sentenced the appellant thus: –
“Lt. D. P. Dodo (N/10088)
(1) Count one – 7 years imprisonments.
(2) Count Two – 2 Years
(3) Count Three -7 Years
… All the sentences are subject to confirmation by the Appropriate Superior Authority (ASA).RECOMMENDATIONS
The court recommended that:
a. All monies stolen should be recovered and paid into the coffers of the NA
b. DMP should be recognized to enhance probity and accountability.
The issue of money cheques at DMP should be addressed.”
Aggrieved by the conviction and sentence of the General Court Martial, the appellant appealed to the Court of Appeal on three grounds of appeal. The court of Appeal allowed the appeal as follows:-
“The inclusion of a Military police officer as a member of the court martial has denied the court martial the competence to entertain the charge against the appellant and it is on these ground (sic) that his appeal succeeds. Having found the court martial incompetent, it is unnecessary to go into other issues raised in the grounds of appeal. The proceedings of the court martial are hereby vacated and the appellant discharged.”
The Nigerian Army was dissatisfied with the decision of the Court of Appeal; hence it appealed to this court on three grounds of appeal. In pursuance to the rules of this court, learned counsel for the parties exchanged briefs of argument, which they adopted at the hearing of the appeal. Issues for determination were raised in the appellant’s brief of argument, as follows:-
“1. Whether the Court of Appeal was right in law when it held that the Judge Advocate in the Court-Martial was a member of the court Martial and that his membership denied it the competence to try the Respondent, thereby giving judgment in his favour.
- Whether the court of Appeal was right in law when it held that the Military police officer was disqualified from being a Judge Advocate and that it was wrong to have served in the Court Martial that tried the Respondent.”
A single issue was formulated by the respondent for determination in his brief of argument. The issue is:-
“Whether the Court of Appeal was right in holding that the appointment of a Military Police Officer to serve as Judge Advocate contrary to the Queens Regulation for the Army 1975 and the Rules of Procedure (Army) 1972 made applicable by virtue of S. 181 of the Armed Forces Act 2004 vitiated the composition and undermined the competence of the General Court Martial.”
I will adopt the issues for determination formulated by the appellant for the treatment of this appeal starting with the first issue. In proffering argument to cover the first issue, the learned counsel for the appellant has submitted that the court below misconstrued the provision of section 129 of the Armed Forces Act Decree 1993 as amended and the foot note 1 of Rule 23 of the Rules of procedure (Army) 1972, and did not take cognizance of section 180 of the Armed Forces Decree 1993 (as amended) which is to apply in conjunction with the provisions of the Armed Forces Act. According to learned counsel section 134 (2) of the Armed Forces Act would have guided the court below in deciding whether the Judge Advocate was qualified to serve in the court Martial or not. The learned counsel posited that section 129 of the Armed Forces Act has stated clearly the distinction between the Judge Advocate and members of the court Martial and that section 129(a) are plain enough on the composition of the General Court Martial. He contended that the attitude of this court is that when the words of a statute is clear and unambiguous, no other interpretation should be given to it, as that may distort the intention of the law maker. See Omoijabe v. Umoru 1999 8 NWLR part 614, Nigeria Progress Ltd. v. N.E.L. Corp (1989) 20 N.S.S.C. part II page 211, and Obisi v. Chief of Naval Staff 2004 8 N.J.S.C. at page 140, which the learned counsel cited. The learned counsel finally submitted that the interpretation given by the lower court, that a Judge Advocate is a member of a Court Martial by operations of law distorted the position of the law as reiterated in the Obisi’ case supra.
The learned counsel for the respondent in reply has distinguished the Obisis’s case supra with the instant case with two factors, which are:-
“(1) The Judge Advocate in Obisis’ case was not a Naval Police Officer from the same office which investigated and prosecuted that case so that the partiality or impartiality of the Judge Advocate was not an issue.
(2) This Honourable Court defined the term “Judge Advocate in the American parlance” and from the American con where a Judge Advocate can also double as a Prosecutor – a scenario that is completely alien to the common law system and the British Military Justice system from which our Military Justice system is derived”.
It is the contention of the learned counsel that under our military justice system, the judge advocate is an impartial and dispassionate adviser to the court Martial with a statutory duty to balance the interest of the parties and ensure that the accused does not suffer any disadvantage or unfairness throughout the trial. Learned counsel referred to the Rules of procedure (Army) 1972 made applicable by virtue of section 181 of the Armed Forces Act, Rule 80, 1 – 8 which defines and prescribes the general duties of a Judge Advocate as follows:-
(1) The Judge Advocate shall be responsible for the proper discharge of his functions to the Judge Advocate General.
(2) The Prosecutor and the accused respectively are at all times after the Judge Advocate is named to act at the trial entitled to his opinion on any question of law or procedure relative to the charge or trial whether he is in or out of Court to the permission of the Court.
(3) On the assembly of the court the Judge Advocate shall advise the court on any defect in the constitution of the court or in the charge sheet, and during the trial he shall advise the Court upon all questions of law or procedure which may arise. The court shall accept his advise on all such matters unless they have weighty reasons for not doing so, and if the Court does not accept it their reason for not doing so shall be recorded in the proceedings.
(4) After the closing addresses the judge Advocate shall sum up the evidence and advise the court upon the law relating to the case before the court close to deliberate on their findings. If in the course of deliberating on their findings the court require further advice from the judge advocate, they shall suspend their deliberation and ask and be given such advice in open Court.
(5) If when the court announce a finding of guilty or a special finding under either section 98 of the Act or rule 66 (3) the Judge Advocate is of the opinion that such finding or special finding is contrary to the law relating to the case, he shall once more but not more than once more, advise the Court what findings are, in his opinion, open to them. The Court shall then reconsider their finding in closed door. The record of the proceedings relating to such reconsideration shall be in the form set out in schedule 4 to these Rules.
(6) The Judge Advocate shall be present wherever the court is sitting whether in open court or closed Court, except when the Court is deliberating on the finding on the charge or on a revision thereof.
(7) The Judge advocate has equally with the President the duty of ensuring that the accused does not suffer any disadvantage in consequence of his position as such or of his ignorance or of his incapacity to examine or cross-examine witnesses, or to make his own evidence clear and intelligible, or otherwise.
(8) The Judge Advocate shall be responsible for seeing that a proper record of proceedings is made in accordance with Rule 92 and responsible for the safe custody of the record of the proceedings under Rule 94.
The learned counsel for the respondent has submitted that what obtained in the court Martial was tantamount to breach of rules of natural justice. I will at this juncture, reproduce the provision of section 129 of the Armed Forces Act here below. It reads:-
“129. Types of courts – martial
There shall be, for the purposes of carrying out the provisions of this Act, two types of courts- martial, that is –
(a) a general court – martial, consisting of a President and not less than four members, a liason officer and a judge advocate;
(b) a special court – martial, consisting of a President and not less than two members, a waiting member a liason officer and a judge advocate.”
As can be gleaned from the record of proceedings of the Court Martial, the proceedings that is the subject of controversy in this appeal, is a general Court Martial, as is reflected on page 11 of the record of proceedings. On that page 11 is the following:-
“RECORD OF PROCEEDINGS OF A GENERAL COURT MARTIAL CONVENED BY
Col HOU Adeja (N/5854) FSS MSS psc (4)
Ag Commandant AHQ Camp
Under
The Armed Forces Decree 105 of 1993 for the trial of
Lt Col. A O Yakubu (N/7464)
Lt P. D. Dodo (N/10088)
Lt AU Mohammed (N/10079)
79 NA/3398 Sgt Emmanuel Goho…
………………………………………………….
………………………………………………….”
Then on Page 12 is the constitution of the general court martial, which reads the following:-
“PRESIDENT
Brig. Gen R I Adeba (N/3002)
MEMBERS
- Col J A Iyedo (N/3421)
- Col D D Oyebanjo (N/2915)
- Col Woki (N/5533)
- Col E B Ojima (N/2719)
- Col D F Osho (N/5778)
JUDGE ADVOCATE
Lt Col A O Abubakar (N/6778) ……………………
……………………………………………………….”
It is instructive to note that the above constitution of the general court martial has met the requirement of the provision of section 129(a) of the Arms Forces Act. By a simple interpretation of the said provision, the tabulation and arrangement of the president, Members and Judge Advocate suggests that the Judge Advocate is not a member of the general court martial perse, as he is not lumped together with the members. By the principles of construction and interpretation of a statute, the words used must be given their ordinary grammatical meaning to give the provision the proper and correct interpretation of the intentment of the Legislature. See Beswick v. Beswick 1968 A.C.58, where Lord Reid expressed the Following:-
“In construing Act of parliament we are seeking the intention of parliament and it is quite true that we must deduce that intention from the words of the Act. If the words of the Act are only capable of one meaning we must give them that meaning no matter how they get there. But if they are capable of having more than one meaning we are in my view, well entitled to see how they get there.”
See also Major and St. Mellon, Rural District Council V. Newport Corporation 1952 A. C. 189. Ibrahim v. Ojoma 2004 4 NWLR part 867 page 89, and Ojokoloba v. Alamu 1987 3 NWLR part 61 page 377.A correct interpretation of the provision of section 129(a) of the Armed Forces Act supra was effected by the Supreme Court in the case of Obisi v. Chief of Naval Staff 2004 8 M.J.S.C. page 137. I take solace in the words of pats-Acholonu J.S.C. (of blessed memory) when he said:-
“We are dealing with the unique case of Court Martial court which is peculiar in its character. Let me illustrate. In the case under consideration, the Judge Advocate for example is not a member of the court and cannot be described as such. He is in the nature of a state counsel being a legal officer whose duty is to prosecute any one arraigned before the Court Martial court. From the provision of section 129 (supra) his position relative to the strict constitution of the court Martial court is the same as the waiting member.”
I am fortified by the above position. In consequence, I am of the view that the lower court erred, when in its lead judgment it posited the following:-
“By operation of law, a judge advocate is a member of a court martial. He is a member of such importance that he is required to be present at all the sittings of the court. He must be a legal practitioner of at least 3 years post call experience giving rulings and directions on questions of law including practice and procedure. His role in a court martial is of utmost importance as the other members act more in the capacity of a jury. The want of a voting right does not in any way undermine the very pivotal role of the Judge Advocate in a court martial.”
The distinction the learned counsel for the respondent is endeavouring to show between the Obisi’s case and the present case is of no moment, for the emphasis is on the role and duties of a Judge Advocate in a court martial proceeding which the rules have set out.
As a matter of fact the duties of the Judge Advocate is advisory, as is confirmed in the powers and duties reproduced supra. The manner with which the Judge Advocate in this case discharged these duties can be seen on various parts of the record of proceedings. For example on page 23 of the record of proceedings. On that page and under a heading of ‘FINDINGS’, was recorded the following:-
“This court listened to the prosecution and the Defence counsels’ arguments on the above counts/charges against Lt. Col Yakubu (N/7460) and 3 others and had appreciated the legal issues arising from both sides of the arguments as summed up by the Hon. Judge Advocate in this case.”
On page 29 can be seen the following:-
“JUDGE ADVOCATE OBSERVATION TO AS A
Please note that for count three that of sect 90 of AFD 195 as Amended the court entered a sentence of 7 yrs term of Imprisonment for Lt. Mohammed and Dodo. The court must have mistaken that offence with the offence of forgery under sect 112 which has a maximum punishment of twenty one yrs. This sentence has to revert to 2 yrs Imprisonment in line with the appropriate charge under sec 90 as charged.”
There is no gainsaying that the above portends the advisory role of the Judge Advocate, and that he was not a member of the court. At any rate, the provision of section 134(2) of the Armed Forces Act should have been given the attention it deserves. The provision is as follows:-
“(2) An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused and any other officer who has investigated the charge against the accused, or who under service law has held or has acted as one of the persons holding an inquiry into matters relating to the subject matter of the charge against the accused, shall not sit as a member of a court martial or act as a judge advocate at the court martial”
One of the particulars supporting ground one of appeal in the Court of Appeal, states that the Judge Advocate was a military officer from same office, which investigated the case contrary to the provisions of the Manual of Military Law. See page 109 of the record of proceedings. In fact if the court below had read carefully the said provision of section 134 (2), the learned justice wouldn’t have in his judgment found thus:-
“The Judge Advocate in the instant trial, a member of the court Martial, was a Military Police Officer. He was not competent to be a member of the court martial. His membership has undermined the competence of that court martial to try the appellant………………………………
………………………………………………………………”
The inclusion of a Military police officer as a member of the court martial has denied the court martial the competence to entertain the charge against the appellant and it is on these grounds that this appeal succeeds.”
The court below definitely misconstrued the provisions of sections 129 (a) and 134(2) supra. For the forgoing reasoning I resolve issues (1) and (2) of the appellant in favour of the appellant. The sum total of this appeal is that it succeeds in its entirety. The appeal is hereby allowed. The judgment of the lower court is hereby set aside and the judgment of the General Court Martial is affirmed.
SC.290/2009