The Nigerian Army Vs Warrant Officer Banni Yakubu (2013)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, JSC

This is an appeal against the Ruling of the Court of Appeal, Abuja Division (the court below) delivered on the 9 day of February, 2010 in Appeal No. CA/A/66/M/09. Therein, the court below granted extension of time within which to apply for leave to the respondent to appeal against the decision of the trial General Court Martial (GCM for short) presided over by Col. O. O. Okoro (N/7710) at DHQ Joint Officers Mess Mogadishu Cantonment Asokoro, Abuja delivered on 20/12/07 after overruling preliminary objection on two grounds strenuously urged on behalf of the appellant.

The relevant facts of the matter leading to this appeal are not in serious contention. The respondent was convicted by the G.C.M presided over by Col. O. 0. Okoro (N/7710) on 20/12/07 along with one Warrant Officer Peter Weibey for conspiracy. The verdict of the G.C.M was confirmed on 9/8/2008 and same was published on 13/8/2008. The respondent instructed his solicitors to write letter of appeal to the appellant for a review of his case. There was no response to same.

The respondent then approached the lower court by way of motion on notice pursuant to Order 7, Rule 10 (1) and (2) of the Court of Appeal Rules 2007 wherein he prayed for extension of time within which to apply for leave to appeal against the decision of the G.C.M, leave to appeal and extension of time within which to appeal; often referred to as the trinity prayers.

The appellant raised preliminary objection to the application on two grounds that the respondent had not complied with the condition precedent before approaching the lower court and that the respondents action was statute barred by virtue of the provision of section 2 (a) of the Public Officers Protection Act.

The court below considered the materials placed before it and the submission of counsel on the laws seriously canvassed and dismissed the appellants preliminary objection. The court below thereafter granted the requisite leave to the respondent to appeal against the decision of the G.C.M which found the respondent guilty of conspiracy. The appellant felt dissatisfied with the said Ruling of the court below and has appealed to this court. The Notice of Appeal filed on 23/2/2010 contains two grounds of appeal.

Briefs of argument were duly filed and exchanged by the parties in tune with the Rules of the court. On the 6th of December, 2012 when the appeal was heard, learned counsel on both sides of the divide adopted and relied on the brief of argument, as respectively filed, on behalf of the parties.

The lone issue couched on page 3 of the appellants brief of argument for determination of the appeal reads as follows:-

‘Whether the Court of Appeal correctly evaluated (sic) the law when it ruled that the appeal was properly before their lordships, and consequently dismissed the preliminary objection.’

On behalf of the respondent, the two issues formulated for determination, as contained on page 4 of his brief of argument read as follows:-

‘ISSUE 1

Whether the Court of Appeal judicially and judiciously exercised its discretion in favour of the respondent by granting the reliefs sought and dismissing the appellants preliminary objection (GROUND 1)

ISSUE 11

Whether the matter before the Court of Appeal can be negatively affected by the provisions of section 2 (a) of the Public Officers Protection Act (GROUND 2)’