A Rejoinder: “No Offender Should Escape Justice on Mere Technicalities, CJN Tells Judges”
Introduction
Pondering over the recent call by the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, tasking judges in Nigeria not to allow criminals to escape justice on mere technicalities, one would think he was speaking solely for the military justice system in Nigeria. This is because it is the Nigerian military justice system that has borne the brunt of the bemoaned court deference to fanciful technicalities in judicial review of cases. The CJN gave the charge on the occasion of the opening ceremony of the 2021 national workshop for investigators and prosecutors organized by the National Judicial Institute (NJI) in Abuja.
This clarion call has just re-echoed the same position of the apex court on the issue as espoused in the case of Ogunye V. The State[1], where the SC held that,
“Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice”. And in the case of Osalumhense V. Ahoro [2], Omoleye JCA opined that “Nowadays, the courts have shifted away from the orthodox method of narrow technicalities approach to justice. The weight of judicial opinion is now predominantly in favour of a court doing substantial justice rather than undue adherence to rules of courts and technicalities”.
Military Justice Fused With Nigerian Criminal Justice System
The fusion of Military Justice System with the Nigerian criminal justice system vide the Armed Forces Act, Cap A20, LFN, 2004 (AFA), Sections 183- 202 is no longer news to Nigerian legal community. Hence the clarion call by the CJN warning judges “not to allow criminals to escape justice on mere technicalities” equally refers to the attitude of superior courts reviewing court-martial cases on appeal to their courts.
Judicial review of court-martial cases on appeal to superior court is a fundamental human right in a democracy like Nigeria hence Sections 183 – 202 of AFA provide right of appeal to superior courts by persons tried at courts-martial. However, subjecting court-martial cases to judicial review appears to have become an albatross to getting military justice for all parties involved whenever military cases go on appeal to superior courts in Nigeria.
Whether this could be blamed on the unfamiliarity of the Nigerian legal community with the military justice system mooted by the Hon Justice Umaru Eri (Rtd) OFR, remains a puzzle yet to be decoded. In his introductory remarks at the opening ceremony of the Nigerian Army Law Seminar in 2009, the former Administrator of the National Judicial Institute (NJI) bemoaned lawyers’ unfamiliarity with military law when he said that:
“This is a genre of law with which a lot of persons are not very familiar or comfortable, … it is still an area of law which we must continuously confront in a democratic authority and thus its executive, administrative and operational actions will continue to be subject to judicial scrutiny and at other times legislative oversight.”[3]
The above observation by the erudite Hon Justice (retired) shows that the majority of the Nigerian Legal Community have very little interest in military law as a result of which they know very little about it. The result is that most courts-martial cases that go on appeal are reviewed from technical or parochial perspective. The AFA foresaw the said unfamiliarity with military justice system and intended to counter the negative effects thereof when it provides for co-option of an assessor while reviewing military cases as follows:
“… the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice, appoint any person with special expert knowledge to act as assessor to the Court in any case where it appears to the Court of Appeal that such special knowledge is required for the proper determination of the case”[4].
Unfortunately, the court is yet to explore and reap the benefits of the above provision. One of such technical issues on the altar of which the court of appeal has sacrificed justice in military cases is the fact that the record of proceedings was not signed the same day and date judgment was given. A few examples of such cases will suffice.
Court-Martial Cases Upturned At Judicial Review
In the case of Capt OD Erizea v NA[5], the court of appeal Kaduna division upturned the court-martial decision convicting the officer because while the sentence was announced on 25th April, 2013, the record of proceedings was signed and dated on 25th July, 2013. The same Court however overruled itself in the case of Lt Col MR Mohammed v NA[6] when it rightly held that the record of proceedings needed not be signed immediately after the conclusion of the case. Surprisingly, the same court in the case of Lt Daniel Modu Mshelia v NA[7] returned to its earlier decision by upturning the court-martial decision on the ground that the record of proceedings was not signed the same day and date the court announced the conviction thereby overruling itself in the case of Lt Col MR Mohammed (Supra).
In another decided and confirmed court-martial case[8], the Appellant was tried by a General Court Martial (GCM) where evidence was adduced which indicted him for having had sexual intercourse with and impregnating the wife of his Batman[9] who was on foreign mission. Further evidence equally indicted him for having sexual intercourse with some female soldiers under his command. It was also proved that he secretly took snapshots of some of those female soldiers while they were naked and that in the process, he drugged one of them to sleep. He was convicted on 5 counts and sentenced to 5 years imprisonment. When he rushed to the Court of Appeal, his conviction was upturned on the ground that the court-martial judgment convicting him was not signed and dated the same day it was announced.
It pains every lover of the 3-way traffic brand of justice espoused in the case of Josiah v. State[10], when the criminal is let loose on ground of technicality. However, the pain is greater on the victim when the criminal is let loose because the court has made a mistake of law. This is because ignorance of the law is no excuse in the law court (ignorantia legis neminem excusat).
Being technical on a case contextually refers to insisting on following the rules strictly even when doing so would abort the necessary justice in the case, i.e., sacrificing justice on the altar of fanciful technicality. Assuming without conceding that the problem in the above mentioned court-martial cases is with the law, the court is enjoined to apply either the mischief or the golden rule principle of statutory interpretation to ensure justice is never circumvented in a given case. However when the rule the court is insisting on applying is the wrong rule, as in the above- mentioned court-martial cases, the court and not the rule becomes the problem.
This is the problem court-martial cases have suffered in the hands of our courts of appeal who are “not familiar” with military law related cases in Nigeria. Permit me to briefly discuss the technicality of insisting that courts- martial judgment must be dated and signed the same day it is announced. It should be noted that the judgment being referred to here is essentially a report of proceedings and recommendations at this stage as it has no validity as judgment, unlike the judgment envisaged under section 294(1), CFRN 1999 (as amended).
The Issues Involved and the Relevant Law
The issues involved are briefly couched into two as follows:
- Whether the extant military law requires a court-martial to sign and date its judgment the same day it is announced?
- Whether a court-martial judgment becomes a valid Judgment after Announcement by the court-martial or after Confirmation by the Confirming Authority?
Issue One:
Whether the extant military law requires a Court-martial to sign and date its judgment the same day it is announced?
The extant military law certainly does not require a court-martial to sign and date its judgment the same day it was announced. The AFA provision which has been the practice in courts-martial proceedings is that the record of proceedings including the judgment is compiled and signed within sixty days from the date of pronouncement of the courts’ finding. This is in compliance with Section 148 (1) of AFA which provides as follows:
“(1) Where a court-martial finds the accused guilty of a charge, the record of the proceedings of the court-martial shall be transmitted within sixty days from the date of the finding to the confirming authority for the confirmation of the finding and sentence of the court-martial on that charge”.
The above-mentioned section 148 including sections 141 and 157 of AFA being the substantive and latter law covering the issue of when to sign and date court-martial findings and awards further provide as follows:
“Section 141: (1) without prejudice to the provisions of section 139 of this Act, the finding of a Court-Martial on each charge shall be announced in open Court and, if the finding is guilty, shall be, and be announced as being subject to confirmation.”
“(2) The sentence of a Court-Martial, together with any recommendation to mercy, shall be announced as being subject to confirmation.”
“Section 157: Except as otherwise provided in this Act, a sentence of imprisonment or field punishment shall begin to run from the beginning of the day on which the sentence was originally pronounced by the Court-Martial trying the offender or, as the case may be, was originally awarded by his commanding officer.”
The above cited sections of AFA, i.e.141, 148 and 157 cover and override Rule 76 of the received Rule of Procedure Army (RPA) 1972 on which the court of appeal relied to upturn the court-martial decisions in the above-mentioned cases. These AFA provisions on the issue constitute the extant and latter law that override the earlier law received vide section 181 which provides that the RPA 1972 shall only apply mutatis mutandis to court-martial proceedings.
For avoidance of doubt, the otiose law under Rule 76 RPA, 1972 provides as follows:
Announcement of Sentence and Conclusion of Trial
“76 (1) – The sentence, and any recommendation to mercy together with the reason for making it, shall be announced as being subject to confirmation.”
“(2) – When paragraph (1) of this Rule has been complied with the president shall announce in open Court that the trial is concluded.2”
“(3) –Immediately after the conclusion of the trial the president and judge advocate (if any) shall date and sign the record of the proceedings. The President or the judge advocate shall then forward it as directed in the convening order.3”
Worthy of note is that sections 141, 148 and particularly 157 of AFA cited above have clearly covered issues contained under rule 76 RPA 1972 including when any sentence of imprisonment shall start to run thereby rendering sub rule 3 of rule 76 and the footnote thereto which rationalizes the requirement for immediate dating of the court-martial judgment otiose. Another evidence of otioseness of Rule 76, RPA 1972, is that whereas sitting with a Judge Advocate (JA) is made optional under the received RPA 1972 (see the underlined words above), the same is made mandatory under the extant law at section 133 (5) of AFA as it provides that:
“A convening officer shall appoint a judge advocate for every court-martial.”
This extant military law on this issue completely throws the received Rule 76 of RPA 1972 with its requirement for immediate dating of court-martial judgment and optional sitting with a JA into the dustbin of history as no court-martial today can sit without the JA, i.e., no JA, no court-martial sitting.
In view of the above, it is submitted that the extant military law does not require a court-martial (which Judgement is deduced from court-martial record of proceedings that take 60 days to be compiled under section 148 (1) of AFA) to date and sign its recommendations the same day it was announced.
Issue Two
Whether court-martial Judgment Becomes a Valid Judgment after Announcement by the Court-martial or after Confirmation by the Confirming Authority? This question is answered by Section 148(3) of AFA as follows:
“A finding of guilty or sentence of a court-martial shall not be treated as a finding or a sentence of the court-martial until it is confirmed.”
The court of appeal Lagos Division espoused this reality in the following cases. In the case of Lt Col A. Akinwale Vs. Nigeria Army[11], the court held that:
“The process of hearing before the General Court-martial and the confirmation of sentences are one and the same integral part of the trial of an accused person under the Armed Forces Decree No.105 of 1993. When a sentence has not been confirmed by the confirming authority, the hearing is not completed.”
Furthermore in the case of Major Sulieman Yekini Vs Nigerian Army,[12] the court held as follows:
“By virtue of section 148(3) of the Armed Forces Decree 105 of 1993, a finding or sentence of the court-martial shall not be treated as a finding or sentence of the court-martial until it is confirmed.”
Appreciating the peculiar nature of the military justice system, Galadima J.C.A stated in the same Lt Col. A. Akinwale Vs Nigerian Army (supra) that:
“One peculiar feature of the proceedings of General Court-martial is that the act of confirmation and promulgation are integral to and are components of process of investigation, the trial and delivery of the sentence. In every procedure adopted there ought to be fairness.”
In view of the above statutory and judicial authorities, it is submitted that a judgment of a court-martial only becomes valid as the judgment contemplated by Section 294 (1) of CFRN 1999 (as amended) after confirmation. The difference between court-martial judgement and that of regular court is like the difference between the reproductive system of mammal that brings its young ones alive and that of reptiles that brings its young ones in form of eggs that have to be incubated and hatched live to offspring. Court-martial judgment is like the offspring of reptiles which come in form of eggs that must be incubated by the confirming procedure and hatched by the confirmation authority for it to ripen to the status of the regular court judgment.
Furthermore, since injustice anywhere is injustice everywhere and since a chain is as strong as its weakest ring, let all hands be on deck to demystify military justice system among Nigerian legal community since military law remains a genre of law which we must continuously confront in a democratic Nigeria.
Conclusion
From the prism of the 3-way traffic brand of justice prescribed by the Hon Justice Oputa in Josiah v State (Supra), it is unjudicial for the courts of appeal to have allowed the offenders in the above-mentioned court-martial cases to escape justice on “mere technicalities”, irrespective of the fact that the victims of the crimes and the upturned judgments have been subjected to unimaginable trauma. It has been duly submitted that lack of real justice at judicial review of military cases and resort to technicality is because such judges are “not very familiar” with military law and military justice system. Let’s pray that the CJN’s warning should cause our superior courts of record to appreciate and review court-martial judgments in a manner that dispenses justice for all.
Recommendations
It is recommended that:
- Defence Headquarters’ Directorate of Legal Services in collaboration with legal services of the 3 Services jointly mobilize resources to launch and champion a campaign towards demystifying Military Law/ Military Justice System in Nigeria.
- NBA re-fine-tunes its programme on military justice system towards educating the Nigerian Legal community to remove that garb of “not very familiar… or comfortable” with military law from them.
- Veterans learned in the principle and practice of military law be formally encouraged to research and publish standard works on military law.
Footnotes
[1] (1999) LCN /2872 (SC)
[2] (2005) 16 NWLR (Pt.951) 2004.
[3] At the opening ceremony of the Nigerian Army Law Seminar 2009, Abuja.
[4] Section 188 of AFA
[5] (2016) 10 NWLR (pt.1519) 52
[6] (Unreported) Appeal No CA/K/423/2015 delivered on 29 August 2016
[7] (Unreported) Appeal No CA/K/132/C/2016 delivered 14 November 2016
[8] Lt Col R Yandoto v NA, CA/A/356c/2015 dated 17 February 2017
[9] A soldier attached to an officer to assist in domestic work.
[10] (1985) 1 NWLR (Pt.1) 125 Justice Oputa recalled P.96 OFH
[11] (2001)16NWLR, (Pt.738), 109
[12] (2002)11NWLR, (Pt.777) pages 232-134
