Introduction

When section 217 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) established the Armed Forces for Nigeria, it equally gave it a separate judicial system to enable it sustain its unique nature for efficient performance of its unique role. For avoidance of doubt, the Attorney General of the Federation can interfere with the proceedings of any other court in Nigeria but not with that of a Court-martial, see section 174 (1) (a) CFRN 1999 (as amended) which provides as follows:

“The Attorney-General of the Federation shall have power- a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly”.

A salient difference between the two systems is in their differing main goals. Whereas the military legal system basically aims to enforce and sustain discipline in the Armed Forces, the civilian legal system aims to protect the rights of individuals while convicting and punishing criminal offenders. Moreover, to scrutinize the conduct of the soldiers in a manner particular to the military is an essential precondition to achieving military goals and so it is the most important justification for creating a separate and independent judicial system for the military. Simply put, men who understand the conduct of military personnel and military goal must scrutinize and try the conduct of military personnel to achieve military goal.

Constitutionality Of Court Martial Trial

One of the reasonable grounds justifying a separate judicial system for the military is that the military is a comprehensive structure whose unique scope of conduct relates to a large number of diverse factors, including experience. And so to administer the Military law among service personnel, the Armed Forces Act, CAP A 20 LFN, 2004 (AFA) provides Courts-Martial and summary trials under sections 129, 115, and 116 respectively. Affirming the constitutionality of Courts-Martial trial in the case of Brig-Gen Anyankpele v. NA (2000) 13 NWLR (Pt. 684)…209, the Court of Appeal stated as follows:

“Judicial powers of the Federation of Nigeria are vested by virtue of Section 6 of the 1979 Constitution in the courts to which the section relates. The section relates to the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of a State, the Sharia Court of Appeal of a State and such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws. The General Court Martial and the Armed Forces Disciplinary Committee are the likes of courts also envisaged by section 6(5) (g) of the Constitution, (Pp.225-226, paras H-E).”

Suffice it to say that Court-martial trial impliedly created under section 6 (5) (g) CFRN 1999 (as amended) is expressly created by section 174 (1) (a) of the same Constitution, cited above.

The Peculiarity Of Military Profession

Alienability of fundamental Human Right to Life: Democratic norms require that every citizen including a soldier should bear civic duties and be entitled to protection for all his civil rights. But the fact that the soldier is part of the mechanism responsible for the national security makes his right to life alienable. He has been unwittingly pushed into a tacit waiver of his right to life which is the most fundamental right of every human being. The soldier is subject to meddling with potentially life-taking dangers while carrying out his task in almost every condition whereas his civilian friend is free to abandon his job at will. The soldier is trained to behave differently, walk differently and talk differently mainly because a soldier has a very special and unique task assigned to him under section 217 of CFRN 1999 (as amended), a job which other persons in the society are not trained to do. When a person joins the Army, his first taste of discipline is external. His drill Sergeants seek to instill discipline in him as they believe he has no self-discipline. He loses the right to decide when to get up, when to study and what to do next. The way he dresses, the shine on his shoes and the length of his hair ceases to match his taste. The “Spirit of War” is inculcated in the Soldier through a deliberate, systematic and consistent process of training and acculturation to make him distinct and fit to carry on the onerous tasks associated with the “Business of War”.

Furthermore, in the military, the soldier is expected to find mutual dependence and mutual trust as each soldier relies on the other and every soldier depends on each other for the military system to function. Hence a soldier at sentry post is right to rely on the ready support of a back-up personnel within earshot. To preserve and sustain this peculiar military tradition and culture and the right to demand particular behavioral standards from one another, it becomes imperative for the military to have a separate judicial system from the civilian judicial system. But how can the Armed Forces of Nigeria sustain discipline among it’s troops when the Nigerian appellate courts continue to upturn court martial judgments based on principles that undermine military interest and discipline?

The necessity for separate military legal system was affirmed in an American Army case of Paker V Levy (417 U.S 733 (1974) where it stated as follows:

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise …”

Peculiarity Of Military Justice

The primary purpose of military law is to ensure that all service personnel are disciplined enough to always be battle-ready to perform optimally and ensure that the troops’ morale is ever high. This mood or disposition of troops is sustained by training and effective administration of military justice by Commanding Officers.

In response to repeated calls to soften the Military justice system in the United States of America, Professor John Henry Wigmore wrote as follows:

“The military system can say this for itself: it knows what it wants; and it systematically goes in and gets it. Civilian criminal justice does not even know what it wants; much less does it resolutely go for it and get anything. Military justice wants discipline that is, action in obedience to regulations and orders, this being absolutely necessary for prompt, competent, and decisive handling of masses of men. The Courts-Martial system supplies the sanction of this discipline. It takes on the features of justice because it must naturally perform the process of inquiring in a particular case, what was the regulation or order, and whether it was in fact obeyed. But its object is discipline”. See Lessons from Military Justice, 4 J.AM.JUD.SOC YISI (1921) cited in the Military Law Review Vol 215 Spring 2013 P15.

Appreciating the peculiarity of Military law, the AFA has enjoined the Court of Appeal to appoint any person with expert knowledge in Military law as an Assessor when sitting on Appeal over Military cases. Section 188 provides as follows: 

“For the purposes of this Part, 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.”

Rationalizing a separate military legal system for the Armed Force in the case of R.V Genereux, the Supreme Court of Canada explained that: 

“The purpose of a separate system of Military Tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the Military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threat to the nation’s security. To maintain the Armed Forces in a state of readiness, the Military must be in a position to enforce internal discipline effectively and efficiently. Breaches of Military discipline must be dealt with speedily and frequently punished more severely than would be the case if a civilian is engaged in such a conduct. As a result, the Military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, Special Service corps have been given jurisdiction to punish breaches of the Code of Service discipline. Recourse to the ordinary criminal courts would as a general rule, be inadequate to serve the disciplinary needs of the Military”

The Differences Between Military Legal System And Civilian Legal System

The differences between military legal system and civilian legal system are in two main areas of procedure and composition of the judicial panel. These differences, no doubt can be rationalized by the differing goals of both systems and the esoteric nature of military laws. Details of the differences between the two judicial systems are as follows:

I.     In terms of procedure, it should be noted that the laws of evidence and criminal procedure in military legal system were drawn from the general criminal law of Nigeria and complemented with military law procedure by the AFA. One of such AFA provisions is at section 181 (1) which provides as follows:

“…the rules of procedure relating to trial by courts-martial and summary proceedings for the time being in force in the various services of the Armed Forces, that is, the Rules of Procedure (Army) 1972, the Court-martial Procedure for Royal Navy BR 11 and the Rules of Procedure (Air Force) 1972, shall apply mutatis mutandis unless otherwise provided”.

II.     On the composition of the judicial panel, whereas the judges in the military legal system are not professional jurists rather military officers with not less than five (5) years seniority and service knowledge which section 143 (3) of AFA enjoins every Court-martial to take judicial notice of, professional judges only sit in judgment in civilian legal system. In the military legal system, the military judges have exclusive knowledge of military offenses like AWOL, insubordination and mutiny which ordinarily confer on them exclusive jurisdiction over such purely military offenses whereas in the civilian legal system the judges are professional jurists often conversant with solely civil offenses. See section 133 (2) of AFA which provides the basic qualification for membership of a Court-martial as follows:

“An officer shall not be appointed to be a member of a court-martial unless he is subject to service law under this Act and has been an officer in any of the services of the Armed Forces for a period amounting in aggregate to not less than five years”.

III.     A soldier who is the subject of a military legal system is part of a mechanism responsible for national security and he is subject to potentially lethal dangers and thereby equally regarded to have tacitly waived the most fundamental human right of every individual, i.e. the right to life. Same is not the case with the subjects of a civilian legal system.

IV.     A soldier in contrast to a civilian is required to carry out his tasks in almost every condition, where as a civilian is entitled to abandon his job at will.

V.     In the army one may find mutual defense and mutual trust. Each soldier relies on the other and without such trust the military cannot function. It is in order to preserve this sense of trust and mutual defense and the right to demand the military behavioral standard that it is necessary to have a judicial system that is separate from the civilian system.

VI.     Practicality and efficiency are the principal reasons justifying a separate legal system for soldiers. Military system must be capable of meeting its own needs unconditionally, remain independent, flexible and must take into account timetables of training programs, specific tasks, etc. Besides, a separate military legal system allows exploitation of the potential manpower, as a soldier who is being punished by a military trial authority still remains with the army to still be used as it may wish.

VII.    To regulate the conduct of the soldiers in a manner particular to the military goals, which the civilian legal system is unaware of, is the most important justification for a separate judicial system for the military.

VIII.   Trial of soldiers by the commanders who are experienced military officers and not professional judges makes it easy for the judges to properly assess and punish soldier’s conduct.

IX.      The trial commander possesses the overall responsibility for military activities and the maintenance of discipline among troops of his unit and therefore unlike the civilian judge knows the facts or ingredients to be looked for during trial.

X.        The trial commander knows when a military interest should have priority over the personal interest of the accused and adjudge the case accordingly.

XI.       Whereas the civilian judicial system acts diligently to protect the rights of an individual in the civilian process the military legal system restricts the soldier’s interests in so far as a preferred and overriding military interest exists and that dictates the actions of the military judiciary.

XII.      The army is a comprehensive structure in which the scope of conduct is unique and it relates to a large number of highly diverse matters to which special military experience is an advantage.

XIII.     The importance of knowledge of these differences cannot be overemphasized as it provides requisite enablement for informed scrutiny and review of military cases on appeal.

Conclusion

The Constitution that established the Armed Forces of Nigeria equally gave her a separate legal system. It is therefore no surprising that section 174 (1) of CFRN 1999 (as amended) has shielded military judiciary from the all-encompassing influence of the Attorney General’s power of Nolle Prosequi. The rationale for this is to allow uninterrupted enforcement and sustenance of the unique tradition and culture of the military for it to continue to play its unique role. Furthermore, proper appreciation of the differences between the two legal systems is very important for proper guidance of the appellate courts in Nigeria when reviewing military trial cases.

Introduction

This paper will deliberately juxtapose Nolle Prosequi with Court Injunction wherever necessary since the latter is the focus of this piece.  Nolle Prosequi is an order from the Attorney General of either a Federation or a State formally abandoning a suit or prosecution while Court injunction is a court order requiring an individual or an organization to do or refrain from doing something. Whereas Nolle Prosequi is issued to abandon prosecution or to discontinue same, court injunction is issued to maintain the status quo pending the hearing of the suit.

However, both Nolle Prosequi and court injunction share a similar feature of interfering in court proceedings. In the case of Ilori V. State (1983) 1 SCNCR 94, the Supreme Court held that the A-G can enter Nolle as many times as he wishes over a matter and that this decision cannot be questioned by the court or any other person. Ironically, despite the unquestionable power with which Nolle Prosequi is clothed by the Supreme Court decision in Ilori v. State (Supra) above, it is made inapplicable to courts-martial trial which is the bulwark of military justice system. See section 174 (1)(a) of Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) which provides as follows: 

“The Attorney General of the Federation shall have power to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial in respect of any offence created by or under any Act of the National Assembly”.

Principles Guiding Grant of Injunction

The principles guiding grant of injunction include: 

1. The plaintiff must have a legal right to be protected. This legal right must be recognized by law. It is not sufficient for the wrong to be an inconvenience suffered by the plaintiff or an unconscionable act by the defendant.
2. The legal right must have been infringed or there is a probability that it will be infringed.
3. The injunction will only be granted if there is no other remedy available or adequate in the circumstance. For instance, if damages would be an adequate remedy then the courts will not grant an injunction. Furthermore, the courts will balance the interests of both parties in deciding whether to grant an injunction. If the order would be too oppressive to the defendant, the courts will refuse to grant the order. 
4. The futility of granting an injunction especially when there is little or no possibility of compliance with the order.

Inapplicability Of Nolle Prosequi To Court Martial Proceedings

It is common knowledge that Nolle Prosequi is prohibited from applying to courts-martial both at common law and in our CFRN 1999 (as amended). The reasonable explanation for this may not be far from the fact that military justice system is unique and peculiar in purpose and proceeding. Military justice system is simply allergic to any interference from outside the military due to its unique procedure and purpose.  Whereas the purpose of civil trial is to protect the right of the Plaintiff and compensate him where necessary that of the criminal is to punish the accused after conviction. Neither of these purposes is consistent with the main purpose of military trial which is to sustain discipline in the Armed Forces.

Discipline to the military is what blood is to human life. Hence it has been said an army without discipline is as good as a rabble.

At this juncture, a reasonable question that should agitate the reader’s mind is, if Nolle Prosequi with all its advantages to individuals and the public, is prohibited from applying in courts-martial, why should a court injunction with all its disruptive, diversionary and individualistic tendencies be allowed in court martial?

The answer certainly must be found in something that is against military discipline cum national interest. And whereas it is not common in Nigeria for courts to disrupt court-martial proceedings with injunction, the fact that it seldom occurs is a disservice to the military justice system which is unique in purpose and procedure.

An accused appearing before a court martial must be a person who is subject to military law and in most cases such persons are all military personnel. Court-martial trial is created to run parallel to civil court trial and the streams of both trials can only converge at appellate level in accordance with section 183 of The Armed Forces Act Chapter A20, Laws of the Federation of Nigeria 2004 (AFA) which 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 with the leave of 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).”

Court martial is a court of record that shares co-ordinate jurisdiction with the High Court in Nigeria. The Supreme Court of Nigeria affirmed this in the case of Brig-Gen Anyankpele (Rtd) v. Nigerian Army (2000) 13 NWLR (Pt.684…209 when it stated that:

“Judicial powers of the Federation of Nigeria are vested by virtue of Section 6 of the 1979 Constitution in the courts to which the section relates. The section relates to the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of a state, the Sharia Court of Appeal of a State and such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws. The General Court Martial and the Armed Forces Disciplinary Committee are likes of courts also envisaged by section 6(5) (g) of the Constitution. (Pp.225-226, paras H-E)”.

The co-ordinate relationship between courts-martial and High Court in Nigeria therefore exist to engender mutual respect and independence of either court as the military justice system brooks no interference from any civil court when trying military personnel.  

The independence and sanctity of courts martial jurisdiction over military personnel has been existing from time immemorial at common law before it was domesticated by CFRN 1999 (as amended) at Section 174 (1) where courts-martial proceeding is spared any interference by the Attorney-General with his power of Nolle Prosequi. The AFA follows suit in sustaining the cordial relationship between the courts martial and the civil court by prohibiting retrial by a court-martial in a rare circumstance where a military personnel has been tried by a civil court. See section 170 of AFA which provides as follows: 

(1)     Subject to the provisions of this Act prohibiting retrial where conviction is quashed, nothing in this Act shall restrict the offences for which a person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to service law under this Act for an offence.

(2)     Where a person is tried by a civil court for an offence and he has in pursuance of this Act been punished for an act or omission constituting (whether wholly or in part) that offence by his commanding officer or appropriate superior authority, the civil court shall, in awarding punishment, have regard to his punishment in pursuance of this Act. 

The above provision may apply where circumstances do not allow for military disciplinary measure otherwise where military disciplinary proceeding is in progress, interference by civil authority is not brooked. That is the message in the constitutional provision barring the A-G from entering Nolle Prosequi in courts-martial, see also section 178 (3) of AFA which provides as follows: 

(3)     Subject to subsection (1) of this section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action. 

The rule of exhausting internal remedies before looking elsewhere for justice has been judicially affirmed in many cases including Major Ladojobi v. A,-G, Federation (1982) 3 N.C.L.R, 563. Where an accused is aggrieved with the court martial trial, the court has stated in the case of Akinwale Vs Nigerian Army(2001) 16 NWLR (Pt. 738)…109 that an accused aggrieved with court-martial trial can appeal to the confirming authority since a court martial trial is not complete until acted upon by the confirming authority. See section 149 (1) which provides as follows:

(1) An accused may, within three months after being sentenced by a court-martial and before the sentence is confirmed, submit to the confirming authority any written matter which may reasonably tend to affect the confirming authority’s decision whether to disapprove a finding of guilty or to approve the sentence. 

The Purpose of Military Law

As earlier stated, the major purpose of Military law is to regulate the day-to-day life and activities of the service personnel. The activities and life of service personnel include their training exercises, combat operations and welfare. The purpose of establishing the Armed Forces of Nigeria is to perform the tasks assigned to it by the Constitution under Section 217 (2) of CFRN 1999 (as amended) which provides as follows:  

“(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the Armed Forces as may be considered adequate and effective for the purpose of –

 a.     Defending Nigeria from external aggression;

b.     Maintaining its territorial integrity and securing its borders from violation on land, sea or air;

c.     Suppressing insurrection and acting in aid of Civil Authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly; and 

d.     Performing such other functions as may be prescribed by an Act of the National Assembly.”

The purpose of military justice system therefore is to train and condition the Armed Forces of Nigeria to perform its constitutional role, and the purpose is clearly spelt out by the Supreme Court of Canada in Rex vs Genereux (1992) 1 SCR when it stated that:

“The purpose of a separate system of Military Tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the Military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threat to the nation’s security. To maintain the Armed Forces in a state of readiness, the Military must be in a position to enforce internal discipline effectively and efficiently. Breaches of Military discipline must be dealt with speedily and frequently punished more severely than would be the case if a civilian is engaged in such a conduct. As a result, the Military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, Special Service corps have been given jurisdiction to punish breaches of the Code of Service discipline. Recourse to the ordinary criminal courts would as a general rule, be inadequate to serve the disciplinary needs of the Military”

Court Injunction And Court Martial

Can the above reasons for a separate system of military justice for the military profession, world over, be achieved if court martial proceedings are allowed to be interrupted by either Nolle Prosequi or Court Injunctions? The answer is NO! To further expose the disservice of allowing court injunction to apply to courts-martial, let us revisit the principles of granting court injunction.  

1. 1. Plaintiff must have a legal right to be protected. The accused standing trial before a court martial does not have such a right like a civilian plaintiff before a civil court. His right as an accused is entitlement to military justice which the law expects him to get from the military disciplinary proceeding. 
   2. The said legal right must have been infringed or about to be infringed. This is inapplicable to military personnel as an ongoing court-martial protects every right of the accused. 
   3. Injunction is granted if there is no other adequate remedy. This is equally inapplicable being inconsistent with military justice system or in any case sub-paragraph (a) above covers this point. 
   4. Futility of granting injunction especially when there is little possibility of compliance with the order. This very particular principle clearly exposes the irrationality of granting an injunction against court-martial proceeding as the possibility of enforcing same is very little.

In the case of Bank Baston NA USA & ORS V. Victor Adegoroye & Anor (2002) 2 NWLR (Pt. 644) 217, Oguntade JCA (as he then was) stated that, it is reckless and improper use of injunction when not invoked in cases of extreme urgency. In the military profession however, what constitutes extreme urgency in every situation is determined by the Appropriate Superior Authority including the court-martial in this case and neither the civil court nor the accused can do it. It is therefore a disservice to the military profession and the country in general to interrupt courts-martial with court injunction. This lesson must be learnt from the constitutional prohibition placed on Nolle Prosequi.

Nature Of Soldiering Profession

The constitutional role of the military and what separates the military profession from all other occupations is that soldiers are routinely prepared to kill, perform guard duties and when they are not dying, they must be preparing to die. This is why the military job is likened to a vocation where the volunteers donate not only their lives but also sacrifice all worldly enjoyment to ensure they defend their fatherland. The self sacrificial nature of the military profession is equally affirmed in the Bible at 2Timothy 2:4 (NKJV) as follows:

“No one engaged in warfare entangles himself with the affairs of this life, that he may please him who enlisted him as a soldier.”

Discipline – A Necessity For Effective Soldiering

The soldier’s obligation all over the world is to defend his country and, if necessary, to die doing so. This constitutional role of the Armed Forces can never be accomplished without discipline and professionalism. General Ocran of the Ghanaian Army rightly observed this in his book, Politics of the Sword; where he stated as follows:

 “The army thrives on discipline, obedience, self-abnegation, self-sacrifice, fidelity, etc; to the extent that if these disappear, there is no army but a rabble.”

Obedience to lawful orders is the first virtue of a soldier. The court in McCall v McDowell (Deady, 233; 1 Abb. (U.S.) 212; 1Pac. Law Mag. 360.) affirmed this when it said that:

“Obedience is the first duty of a soldier without which, there can be neither discipline nor efficiency in the army.”

In the case of Sutton v. Johnstone (2013) (IT.R 493), the court expressed the view that a subordinate must not judge the expediency or consequence of the order he received before obeying same. Also in the case of Marin v. Mott 78 Cal. App.5th 700, the court bluntly expressed the view as follows:

“while subordinates are pausing to consider whether they ought to obey or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance.”

The primary purpose of military law therefore is to ensure that all service personnel are disciplined enough to always be battle-ready to perform optimally, ensuring the troops’ morale is ever high. This mood or disposition of troops is sustained by training and effective administration of military justice that brooks no interference with any court injunction.

The Peculiarity Of Military Law

The soldier is trained to behave differently, walk differently and talk differently mainly because a soldier has a very special and unique task assigned to him under section 217 of CFRN 1999 (as amended), a job which other persons in the society are not trained to do. 

The Court succinctly said so in an American Army case of Paker V Levy (417 U.S 733 (1974) where it stated as follows:

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise …”

The corollary from the opinion of the court above is that should the differences between the military and civilian community be erased, the military would be unable to fight or be ready to fight wars when the occasion arises. Hence in response to repeated calls to soften the Military justice system in the United States of America, Professor John Henry Wigmore wrote as follows:

“The military system can say this for itself: it knows what it wants; and it systematically goes in and gets it. Civilian criminal justice does not even know what it wants; much less does it resolutely go for it and get anything. Military justice wants discipline, that is, action in obedience to regulations and orders, this being absolutely necessary for prompt, competent, and decisive handling of masses of men. The Courts-Martial system supplies the sanction of this discipline. It takes on the features of justice because it must naturally perform the process of inquiring in a particular case, what was the regulation or order, and whether it was in fact obeyed. But its object is discipline.”

Unfortunately the attitude of most of the stake holders in the administration of Military justice in Nigeria does not portray much understanding of the purpose and peculiarity of military law. A situation where it has become a fad for soldiers to criticize and abuse their commanders without fear of risk of disciplinary actions for insubordination exposes their failure to understand the nature, purpose and the peculiarity of military profession even before joining the military; a situation where our famous human rights lawyers often employ the media to criticize the military justice system destructively rather than constructively or fails to see any crime or professional misconduct in a military officer borrowing money from his soldier merely exposes their failure to study and understand the purpose and peculiarity of military law, and a situation where an appellate court equated courts-martial findings and awards that are essentially mere recommendations pending confirmation to a civil court judgment merely exposes a glaring disconnect between such court and the Military law.

Judicial Affirmation Of Peculiarity Of Military Law

Fortunately however, the Nigerian Supreme Court and some Courts of Appeal have responsibly affirmed the purpose and peculiarity of Military law while presiding over appeals on Military trials. For instance, one of the landmark judgments in the development of military law is the affirmation by the Supreme Court, in the case of NAF v. James (2001) FWLR (Pt.55) 501, that an appellant who canvases a case contrary to the service knowledge of the court-martial members and the provisions of the relevant service manual on the subject bears the onus to prove such a case in compliance with section 141(1) of the Evidence Act Cap 112, Laws of the Federation of Nigeria which provides as follows: 

“141 (1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from or qualification to, the operation of the law creating the offence with which he is charged is upon such person.”

In allowing the Appeal of the Nigerian Air Force against the judgment of the court of appeal that upturned a court-martial judgment that convicted the respondent, the Supreme Court maintained that the finding by the general court-martial, that the Chief of Air Staff is not authorized to disburse such large sums of money for welfare purposes going by service knowledge and the provisions of relevant Air Force Manuals is not hearsay evidence.

The court held that it was not the case of the prosecution that the outgoing Chief of Air Staff approved the withdrawal and sharing of the sum of ₦10,000,000 (Ten Million Naira) by the Respondent and some other officers. The court of appeal therefore was wrong in nullifying the Court-Martial judgment on the ground that the prosecution did not call either the outgoing Chief of Air Staff who purportedly gave the order or Wing Commander Iyen who relayed the said order to prove that the order was given or not in order to prove charges of theft of the ₦10,000,000 (Ten Million Naira) against the Respondent and his co-accused officers.

On when the judgment of a court martial becomes valid as that of the high court in Nigeria, the Court of Appeal in the case of Akinwale Vs Nigerian Army(2001) 16 NWLR (Pt. 738)…109 , while interpreting Section 149(1) of AFA held as follows: 

a.     That confirmation of Court-Martial judgment is part of hearing the parties involved in the case. 

b.     That an accused has been denied fair-hearing if he is prevented from forwarding any grievances to the confirming authority before court-martial judgment is confirmed. 

c.     That the process of hearing before the General Courts-Martial and the confirmation of sentences are one and the same integral part of the trial of an accused person under the AFA. 

d.     That when a sentence has not been confirmed by the confirming authority, the hearing is not completed.

The above erudite judgment of the Court of Appeal accords in toto with the letters and spirit of military justice system with regard to what constitutes courts-martial judgment.

In the English case of Grant v Gould (1972) 2 Henry Blackstone, 69, the court stated that:

“A soldier does agree and consent that he shall be subject to the military discipline, and he cannot appeal to the civil courts to rescue him from his own compact.”

It is expected that both serving and potential soldiers as well as all civilian legal practitioners should understand that military profession is a calling and not a place for inordinate pursuit of rights or money.

The point being made here is that, any attempt to apply the same civil criminal procedure rules strictly to military trials irrespective of the peculiar nature of the latter will end up denaturing the military profession. Hence, the Supreme Court of the United States of America has warned in the case of Orloff V. Willoughby 245 US 83 (1953) as follows: 

“We know that from top to the bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism and other objectionable handling of men. But judges are not given the task of running the Army. The responsibility of setting up channels through which such grievances can be considered and fairly settled, rests upon Congress and upon the President of the United States and his subordinates. The Military constitutes a separate specialized community governed by a separate discipline from that of a civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters…”

Conclusion

One good lesson that ought to be learnt from prohibition of Nolle Prosequi in courts-martial is that, it is an intolerable abuse of court process to interrupt an ongoing-court-martial proceeding with court injunction since the system is unique and independent; having all the opportunity to remedy whatever grievance of an accused during or before confirmation of any court-martial findings and award. 

If with all its merits to criminal justice system in Nigeria, Nolle Prosequi is prohibited from applying in courts-martial in order to protect and preserve the unique military justice system, why should any court injunction be allowed to do otherwise? Although those outside the military may find military law odd and draconian, it is however a sine qua non for the survival and functionality of the military establishment created by our Constitution as a necessity for the survival of our Country. Hence the prohibition of Nolle Prosequi from interfering in courts-martial and the civil court should equally spare the courts-martial its injunctive harassment. 

Introduction

A Claimant in every Fundamental Human Rights Enforcement proceeding ordinarily should sue a respondent who can answer all the questions that cannot be effectually and completely answered unless he is a party and a respondent who must be bound by the result of the suit. The practice currently in our courts where some Claimants sue respondents who know little or nothing about the subject matter and the cause of action in human rights enforcement proceedings apparently makes such cases difficult. This is worse when all the respondents listed in the suit fall outside the acclaimed categories of parties namely: proper party, desirable party and necessary party [Green V. Green (1987) 3NWLR].

Status of a Synergized Security Outfit

A Synergized Security outfit is an outfit formed by pulling resources from diverse Law enforcement agencies together to form an outfit that can deal squarely with the overwhelming security challenges in the Country. The truth is that each of the synergized security outfits like Operation Hadi Kai, Operation Safe Haven, Operation Delta Safe, etc., whose personnel do allegedly cause the injury being sued against is autonomous and independent of the services that seconded personnel to her. The outfit is answerable to the President through the Chief of Defence Staff. Each is composed of military and para–military personnel drawn from the other services to create a composite outfit radically different from the contributing services in all material respects. And each of the synergized outfits is commanded by a senior officer of Brigadier General’s rank and above with sub–commanders in charge of Administration, Operations, finance, legal and other departments. It equally has the attributes of legal personality such as power to acquire rights, duties and enter into some legal relationships. For purposes of command and control over the seconded personnel of these synergized security outfits, their Commanding Officers in the outfits automatically assume command over the personnel in accordance with section 291(1) of the AFA [The Armed Forces Act CAP A20].

Mission of Synergized Security Outfits

The upsurge of divers security challenges all over the country including, terrorism, banditry, kidnapping and economic sabotage has caused the President, as the Commander in Chief of the Armed Forces and the Chief Security Officer of Nigeria to invoke his powers under section 217 (2)(c) of the CFRN[ The Constitution of the Federal Republic of Nigeria, 1999 (as amended)] 1999 (as amended) and section 8(1)(a) of AFA[ Armed Forces Act, CAP A20, LFN,2004] to establish different synergized security outfits to deal with our overwhelming security challenges. 

The power vested on the President by the Constitution and the Armed Forces Act to deal with Security issues in the country impliedly empowers him to create such bodies in order to duly carry out his constitutional duty. He is only limited by the law forbidding him from giving any order that is illegal or inconsistent with the Constitution.

Parties to a Suit

The three types of parties and the difference between them were properly spelt out in the case of Green V. Green (supra). Delivering the leading judgment, Oputa JSC (of the blessed memory) mentioned the three parties as follows: 

“proper parties, desirable parties and necessary parties. Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. In other words the question to be settled in an action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”

Determinant in Joinder of Parties

The determinant in considering who should be joined as a necessary party in a case as stated in the Supreme court case of Ibegwura Ordu Azubuike VS Peoples Democratic Party & Ors[ LER[2014] SC. 476/2012] is whether a person is likely to be affected by a decision reached in a matter before the court. Other factors are: 

a. Is the cause or matter liable to be defeated by non–joinder?

b. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? 

c. Is the 3rd party a person who should have been joined in the first instance? 

d. Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter? PER AFOLABI FABIYI, JSC 

All the posers above are answered in favour of the point that the contributing organizations ought not to be joined as parties in such cases.

Relating the Law to Suits against Synergized Security Outfits in Nigeria

Relating the above Legal position to the current situation where Contributing Services and Organizations are joined as parties against personnel of various Synergized Security Outfits in Nigeria must take note of the structural status of the said Synergized Security Outfits. The relevant questions at this juncture therefore are: 

a. Whether the contributing organization is a necessary party to a suit alleging breach of right against the personnel of a synergized security outfit? 

b. Whether the Synergized Security outfit is suable?

Let me at this juncture, address these posers seriatim.

• Whether the Contributing Organization is a Necessary Party to a Suit alleging breach of right against the Personnel of a Synergized Security Outfit?

The answer to this poser is found in the ruling of the Supreme Court of Nigeria in the case of Green V. Green (supra) and that of Ibegwura Ordu Azubuike VS Peoples Democratic Party & ORS (supra) where the court held as follows: 

“The well settled position of the law for making a person, either natural or legal, to be a party to an action is that he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of the suit or may be affected by the decision.” PER RHODES–VIVOUR

Going by the above ruling, a party to be sued as a necessary party in a suit must be the person who is responsible for the act complained against and a person who is in a position to answer the questions that must be answered for the matter to be effectually and completely settled. The law provides that all the personnel attached to a formation like the Synergized Security Outfit such as Operation Safe Haven, are under their respective Commanding Officers in all material respects. The Outfit can deploy any of them on any duty and instantly punish them when necessary without recourse to the contributing organization[ See Sections 115(1), 116(1) and 291(1) of AFA].

In view of the above, it is this synergized security outfit that can answer questions that can effectually and completely settle an action as prescribed in the Supreme Court ruling above. It is the Commander of the synergized security outfit who details the troops on specific operations that knows the subject matter of the case resulting from such operations he authorized. The Commander–in–chief will not deny the result of the operation he commanded while the task force Commander in the field, and not any Commander of the contributing organization, remains in a position to answer all the questions which cannot be effectually and completely settled unless he is a party.

Note that by the organizational structure and modus operandi of the synergized security outfits, neither the contributing organization nor its commander can contribute anything to the success of a case against personnel of synergized security outfits since nobody can give what he does not have (nemo judex in causa sua). In a decided case where a claimant enlisted the Nigerian Army as the 1st Respondent in a suit claiming damages against personnel of Operation Safe Haven but failed to include the special task force itself as a party, the action was trivialized as it became nearly impossible to get answers to questions that could effectually and completely settle the matter. Same principle should apply to similar outfits like Operation Thunder, set up sometime by the Akwa Ibom State Governor as the Chief Security Officer of the state.

In view of the above, it is opined that a contributing organization should not be joined in suits against personnel of synergized security outfits. This is because they do not qualify in fact as proper party, desirable party or necessary party as defined in Green V. Green (supra).

• Whether the Synergized Security outfit is suable?

The Synergized Security outfits were created based on the Operational and Administrative directives of the President. These directives from the Commander–in–Chief, transmitted in form of standing order under section 57 of the Armed Forces Act, as affirmed in the case of Brig. Gen Anyankpele (rtd) V. The Nigerian Army [See (2000) 13 NWLR Pg212], has the force of law in the eyes of military law jurisprudence and it qualifies under operational exigencies to create the synergized security outfits to aid the civil authority in combating overwhelming security challenges ravaging our Country. The court appeared to have given judicial imprimatur on similar issues in different cases. For instance, in the case of Onamusi Vs Ibrahim[ (1971) AIINLR 361], the court held that the abandoned Property Committee, though not incorporated can be sued.

See also the case of Kpebimoh Vs The Board of Governor Western Ijaw Teachers Training College[ (1968) NMLR], where it was held that the Board can be sued because of the statutory function that it was performing. Moreover, Section 217 (2)(c) of the CFRN 1999 (as amended) which empowers the President to call upon the members of the Armed Forces to suppress insurrection and act in the aid of civil authorities impliedly empowers him to set up the synergized security outfits. And if the legislature has thus created a thing which can own property, own servants who can inflict injury, it must be taken to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authorities and procurement.

In view of the above, it is submitted that a Synergized Security Outfit being a task force created pursuant to the President’s statutory powers is suable.

The Way Forward

It is therefore advised that for the court to make effective judgement on Fundamental Human Rights Enforcement suits against Synergized Security Outfits, the President, the outfits and its commanders be sued directly. A leaf should be borrowed from the judgement in the recent case of Mazi Nnamdi Kanu Vs Federal Republic of Nigeria and 7 Ors, where the High court of Umuahia levied the Federal Government of Nigeria who the court believed created the Operation Python Dance through which the injury complained against was perpetrated to pay Mazi Nnamdi Kanu the some of One Billion Naira rather than pursuing the organizations that contributed personnel to form the Operation Python Dance.

Conclusion

It is hoped that this observation would be heeded so that only necessary parties are sued in Fundamental Rights Enforcement matters against synergized security agencies. Otherwise, we keep blaming organizations who know little or nothing about such cases and the judgment thereon and so can not respond positively thereto.

1     When does the judgment of a court-martial begin to operate?

The simple answer is 3 months after review and confirmation. More people know about the term court-martial than those who know how it works.  Simply defined, court-martial can mean an ad hoc court constituted under the authority of the Armed Forces Act, CAP A20, LFN, 2004(AFA) to try indicted Military personnel and dispose of disciplinary cases in the Military.

2.      The judgment of a court-martial differs from the judgment of a high court in the same way the reproductive process of oviparous animals like fowl that gives birth to its young ones by laying eggs differs from that of viviparous animals like goat that gives birth to its young ones alive. The statutory root for the court-martial’s mode of giving judgment is enshrined in Section 149(1) of the AFA which provides as follows:

“An accused may, within three months after being sentenced by a court-martial and before the sentence is confirmed, submit to the confirming authority any written matter which may reasonably tend to affect the confirming authority’s decision whether to disapprove a finding of guilty or to approve the sentence”.

3.     Yes, not goat because a baby goat has visible features of a goat and can be identified as a goat. The egg hasn’t displayed the features of any living thing for easy identification. It’s a living thing in the making. And so is like a court-martial judgment until it is confirmed after it has hatched during incubation involving a review by the confirming authority. An aggrieved convict is expected to forward his grounds of grievance to the confirming authority before it either confirms or disapproves the court-martial sentence. Hence the Court of appeal’s decision that until a court-martial judgment is confirmed, the trial isn’t completed. I hope I have made myself clear now on this point.     

4.     Furthermore, Section 148(3) of AFA specifically provides that:

“A finding of guilty or sentence of court-martial shall not be treated as a finding or sentence of the court-martial until it is confirmed”.

The AFA provisions quoted above categorically show that the Status of a court-martial judgment is that of an egg waiting to hatch after incubation of confirmation for it to ripen to an executable judgment. The court of appeal has affirmed this in the case of Akinwale V. Nigerian Army (2001) 16 NWLR, 115 per Oguntade J.C.A at paragraphs 125 paragraphs F-D thus:

“the process of hearing before the General Court-Martial and the confirmation of sentence are one and the same integral part of the trial of an accused person under the Armed forces Decree N0.105 of 1993. When a sentence has not been confirmed by the confirming authority, the hearing is not completed”.

5.     The above statutory and judicial authorities have, no doubt, explained the fact that a court-martial finding and award remains an egg until it ripens to a Civil-Court Type of Judgment on hatching after incubation, by the confirming authority. Please note that it takes the incubation by the confirming authority for a court-martial findings and award to hatch and ripen to executable or appealable judgment.                

INTRODUCTION

1.     Rules of Engagement (ROE) consist of directives issued by competent military authority which delineate the circumstances and limitations under which an armed force engaged in a conflict can initiate and/or continue operations with other forces encountered. Many problems emerge often during operations because of confusion between the Law of Armed Conflict (LOAC) and Rules of Engagement (ROE). It is therefore right to clarify the distinctions and create ROE suitable for a particular mission, taking into account a number of political, military and legal factors.

RELATIONSHIP BETWEEN LOAC AND ROE

2.     The relationship between LOAC and ROE can be clarified as follows:

a.       LOAC is international law that we have a legal duty to observe (infractions are punishable under the law).

b.       ROE are our rules- how we want to operate. They have to comply with LOAC but they are also influenced by other critical factors.    

c.        ROE is always either equal in restrictiveness or more restrictive than LOAC.  ROE can never authorize an act that is forbidden under LOAC.

CRITICAL FACTORS THAT MAY INFLUENCE PROMULGATION OF ROE

3.     Drafting and promulgation of ROE must consider the following:

a.     National laws:  The armed forces of every nation must comply with the laws of the country in its rules of engagement. E.g. the laws of some nation may restrict the ability of forces to use force. Particularly, deadly force to defend properties. Commanders operating in a multinational operations ought to know these restrictions in order to employ forces in an efficient and effective manner.

b.     National Policy:  Different nations may differ in their Legal positions on several issues and so the planning and conduct of military operations must reckon with these differing national policy positions. E.g. while some nations may limit permissible levels of incidental injury or collateral damage to levels below what is acceptable under LOAC, others do not allow their military to conduct law enforcement activities in multinational operations.

c.     National Security Policy.

d.     Operational Concerns (eg Protection of our Forces and types of allies).

e.     International Law and Concerns (Eg. LOAC, Status of Forces Agreements, host national laws).

f.      Self Defence:  Self Defence is the use of force to defend against attack or imminent attack. Both international law and domestic law of all nations recognize self defence. National laws differ on the definition and content of self defence. Hence, individuals and units exercise the right to self defence in accordance with their national law. 

4.     Four(4) Levels of Self Defence

a.     Individual Self Defence: This refers to the right of an individual to defend himself or herself (and in some cases, other individuals) from an attack or imminent attack. Some nations permit commanders to limit individual self defence as in unit self defence.

b.     Unit self-defence: Unit self-defence is the right commanders have to defend their unit and other units from their nation in the face of an attack or imminent attack. Some nations permit this right to be limited by orders from higher authority. 

c.     Protection of others: This refers to the the right to defend specified persons (who are not part of the force) against attack or imminent attack.

d.     National self-defence: article 51 of the United Nations Charter confers on a nation the right to defend itself against armed attack, and the threat of imminent attack for most nations.

e.     Hostile Act and Hostile Intent: The right to use force in self-defence arises, in most cases, in response to a hostile act (attack) and for demonstrated hostile intent (threat of imminent attack). 

f.      Use of Force in Self-defence : Unless otherwise stated by ROE, all necessary and proportional means and actions may be used in self-defence. At times the threatening entity may be warned to desist from the offending act and military forces are permitted to use force in self-defence only if non-forceful measures fail to deter the offensive attack or: 

1. Have been exhausted 
2. Are unreliable, or
3. Are deemed insufficient

The use of Force During Operations

5.     During peace-time use of force is permitted in self-defence, in exercise of law enforcement authority, and to accomplish operations or mission specifically authorized  by a higher national authority. 

6.     LOAC Principles Concerning the use of Force

a.     Military Necessity– The requirement whereby a belligerent has the right to apply any measures not forbidden by the LOAC which are required to successfully accomplish any military operation. 

b.     Distinction– The requirement to distinguish between the civilian population and combatants and between civilian objects and military objectives and to direct operations only against combatants and military objectives. 

c.     Proportionality– The prohibition of an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 

d.     Humanity– The prohibition of the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.

e.     Precaution– The necessary precautionary measures taken constantly in the conduct of military operations to spare civilians and civilian objects.

f.      Weapon Prohibitions– The prohibition of weapons that cause superfluous injury or unnecessary suffering.

OVERALL PURPOSES OF ROE

7.     The overall purposes of ROE are as follows:

a.     To provide standard guidance during peace time.

b.     To control the transition from “peace time” to “Conflict”.

c.     To control combat operations during conflict.

d.     To control transition away from “Conflict” to “Peacetime”

CONSIDERATIONS WHEN PREPARING ROE

8.     The major consideration when preparing ROE are as follows:

a.     What is the C-in-C’s goal (eg hostage rescue, freedom of navigation; attack- and dislodge terrorist base).

b.     What is the mission, in order to carry out the goal (eg warn the enemy, limited or minor attack or destroy enemy bases).

c.     What is the Threat? (eg. Boko Haram; Niger Delta Miliitants; or OPC).

d.     Who else is involved? (eg Coalition or Merceneries).

e.     Are there any unit’s concerns?  (Eg fear of capture of personnel, use of children and women as a shield).

f.     Who should prepare the ROE (Those familiar with the occupants and the system).

g.    What are the sources of ROE: Joint Task Force Guidance; Treaties of ECOWAS, etc.

Operating Successfully under ROE in a Complex Operational Environment 

Operating under the ROE in a complex operational environment is not an easy task, moreover when a balance is to be struck between conflicting interests of the Belligerents. A complex operational environment can be likened to one associated with asymmetric warfare, where the enemy advance has neither front nor rear column or when it has such column is shielded by armless children. Operating under guidance by ROE in such environment means operating in a manner compatible with the ROE even when the operational environment is neither normal nor ROE-friendly. 

However, ROE being mission-specific can equally be crafted to be near environment-specific. Within the context of this paper, operational environment may be complex in terms of nature of threat, geographical location of belligerent, types of weapons and its method of operation. For instance, the Boko Haram live with the locals whom they use as human shield in most of their operations. In this case the ROE must  be tailored to ensure that own troops do not kill or massacre the armless locals used as shield. Own ROE must continue to be sensitive to such principles of LOAC like military necessity, distinction, proportionality, etc. We must  strike the right balance by training own soldiers to show that it is not the calibre of gun that matters but the man behind the gun, does he has fire discipline? Furthermore, efforts should be redoubled in winning the heart and mind of the locals so that they feel much friendlier with own troops than with the enemy.    

Conclusion

1. The ROE consist of directives issued by military authority that define the circumstances, conditions, degree and manner in which the use of force during military operation might be justified. Factors considered while drafting the ROE includes the goal of the C in C, the threat from the enemy and the units concerns. Applicable laws must include LOAC, National Laws and National Policy. Fighting within the ROE in complex Operational environment is not easy, but effective use of ROE can ameliorate the situation. 

References

1.     Sanremo Handbook on Rules of Engagement By International Institute of Humanitarian Law Sanremo, 2009
2. The Manual on the Law of Non-International Armed Conflict-International Institute of Humanitarian Law Sanremo, 2006
3. The Constitution of the Federal Republic of  Nigeria 1999 (as amended)
4. Armed Forces Act Cap A20 The Laws of the Federation of  Nigeria, 2004

Introduction

1.     In a bold move to stamp out terrorism from the Nigerian space, Terrorism (Prevention and Prohibition) Act 2022 was enacted. Section 3 (1) and 74 of the Act confer on the Attorney General of the Federation the authority to prosecute Terrorism suspects. Since the Act does not provide for the procedure for trial and prosecution of offences, a recourse therefore should be had to extant criminal procedure laws (see section 2 [1] of Administration of Criminal Justice Act, 2015). Then, why the delay in prosecuting hordes of Terrorism suspects gallantly arrested by security agencies in Nigeria?

1. When a lawsuit is instituted in a case wherein an Applicant sues Defendants who have no clue to the subject matter of the suit and may not be able to pay the damages claimed, the suit thereby becomes incompetent as the judgement of the court is thereby rendered ineffective.  Civil suit after all, is a process for recovery of an individual right or redress of an individual wrong. The essential requirements of this suit includes the subject matter in dispute, the cause of action and the relief claimed by the Plaintiff. The practice in our courts where the subject matter, the cause of action and perhaps the ability to pay the claim are clearly outside the knowledge and competence of the defendants clearly makes such cases incompetent, especially when such parties are the only Respondents listed in the suit.

2. This is exactly the case with the current practice in our courts where many Human Right Enforcement suits are filed against the various arms of the Nigerian Armed Forces particularly, the Nigerian Army on issues they know little or nothing about. The truth is that each of the synergized security outfits whose personnel allegedly caused the injury being sued against is answerable to the President  through the Chief of Defence Staff.  Each is composed of military and para-military personnel drawn from the other services to create a composite outfit  radically different from the contributing services and independent of same. Each of the outfits is  commanded by a senior officer of Brigadier General’s rank and above with sub-commanders in charge of Operations, finance, legal and other departments. And it has the attributes of legal personality such as power to acquire rights, duties and enter into some legal relationships. The synergized security outfits include, Operation Hadi Kai, Operation Safe Haven, Operation Delta Safe, etc.

3. The upsurge of divers security challenges all over the country including, terrorism, banditry, kidnapping and economic sabotage has caused the President, as the Commander in Chief of the Armed Forces and the Chief Security Officer of Nigeria to invoke his powers under section 217 (2)(c) of the CFRN 1999 (as amended) and section 8(1)(a) of the Armed Forces Act CAP A20, Laws of the Federation of Nigeria 2004 (AFA) to establish different synergized security outfits to deal with our overwhelming security challenges. The power vested on the President by the Constitution and the Armed Forces Act to deal with Security issues in the country impliedly empowers him to create such bodies in order to duly carry out his constitutional duty. He is only limited by the law forbidding him from giving any order that is illegal or inconsistent with the Constitution. Besides, the task-force are created to carry out statutory mandates as held in the case of Onamusi V. Ibrahim Lawal (1971) AIINLR 361.

4. The determinant in considering who should be joined as a necessary part in a case as stated in the Supreme court case of Ibegwura Ordu Azubuike VS Peoples Democratic Party & ORS (LER[2014] SC. 476/2012) is whether a person is likely to be affected by a decision reached in a matter before the court. Other factors are:

a.   Is the cause or matter liable to be defeated by non-joinder?

b.   Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?

c.   Is the 3rd party a person who should have been joined in the first instance?

d.   Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter? PER AFOLABI FABIYI, JSC

All the posers above are answered in favour of the point that the contributing organizations ought not to be joined as parties in such cases.  

5. The court appeared to have given judicial imprimatur on similar issues in different cases. For instance, in the above mentioned case of Onamusi Vs Ibrahim (supra), the court held that the abandoned Property Committee, though not incorporated can be sued. See also the case of Kpebimoh Vs The Board of Governor Western Ijaw Teachers Training College (1968) NMLR, where it was held that the Board can be sued because of the statutory function that it was performing.
6.  It is therefore advised that for the court to make effective judgement on suits before it, the President, the outfits and its commanders be sued directly. A leaf should be borrowed from the judgement in the recent case of Mazi Nnamdi Kanu Vs Federal Republic of Nigeria and 7 Ors, where the High court of Umuahia levied the Federal Government of Nigeria who is the capable principal to pay Mazi Nnamdi Kanu the some of One Billion Naira rather than pursuing the organs that contributed personnel to form the Operation Python Dance, not even mentioned in the suit.  

7. It is hoped that this observation would  be heeded so that only necessary parties are sued for the court’s judgment to be effective.  Or can organizations be rightly blamed for not responding positively to judgments on cases they know little or nothing about? A situation where Applicants hardly enforce their judgments due to misjoinder of parties is an ill wind that blows no one any good in the judicial process.

INTRODUCTION

1.     The Armed Forces Act chapter A20, Laws of the Federation of Nigeria 2004 (AFA) is an Act made to regulate the activities and lives of members of the Armed Forces personnel in Nigeria. Section 103 of AFA provides for an offence entitled “Conduct to the Prejudice of Service Discipline” This offence exists in military codes of many countries including America, Britain, Canada and Kenya. Although it varies slightly in title in various countries, the offence remains the same in content and purpose having been described as one of the offences that forms the “hardcore of military law”. It is intended to serve as a catch-all offence in order to criminalize any misconduct that is not specified elsewhere in a country’s military law [1].

2.     Civil professions like medicine, law and accountancy have disciplinary committees that try and punish members alleged to have committed any conduct that violates the rules of their professional bodies. For instance, Section 16 (1) of the Medical and Dental Practitioners Act Cap M8, 2004, Laws of the Federation of Nigeria provides (among other violations) that “where a registered person is adjudged by the Disciplinary Tribunal to be guilty of infamous conduct in any professional respect;…,” he should be tried and punished if convicted as stated under section 16 (2) of the Act which provides that “The Disciplinary Tribunal may give a direction under subsection (1) of this section: (a) ordering the Registrar to strike the person’s name off the relevant register or registers; or…,” etc. Why the attitude of our appellate courts to the professional misconduct in the civil profession differs from their attitude to the same type of conduct in the military, (“conduct to the prejudice of service discipline”), is the issue in this paper.

COMPARING PROFESSIONAL MISCONDUCT WITH CONDUCT TO THE PREJUDICE OF SERVICE DISCIPLINE. 

3.     The military profession all over the world is regulated by special code of ethics all embedded in the country’s military law. The “conduct to the prejudice of service discipline” is entitled “conduct to the prejudice of military discipline” in the British variant of the offence at Section 69 of the British Army Act, 1955 [2]. The purpose of the offence as explained in the Earl of Essex’s Articles of War is to ensure that “all other faults, disorders and offences, not mentioned in the Articles shall be punished in accordance to the general customs and laws of war” [3]. In United States of America, the offence is covered under Article 134 (the, “general article”) of the Uniform Code of Military Justice (UCMJ). The section states that “all disorders and neglects to the prejudice of good order and discipline in the armed forces shall be tried by courts-martial and punished at the discretion of that court”. Good order and discipline is a compound term which has been defined as a unique condition which is critical to operational success that sets the military apart from the rest of the society. It was first introduced in 17th Century in English military law from where Nigerian military law emerged with the purpose to serve as a catch-all offence to criminalize any misconduct that is not specified elsewhere in the country’s military law [4].

4.     If professional misconduct is a violation of the rules or boundaries set by the governing body of a profession and  conduct to the prejudice of military discipline is a violation of an attitude centered on respect for constituted authority then the latter term can correctly be analogized to the former. Both terms refer to rules made or standard set by the appropriate superior authority of the respective professions as well as to offences peculiar to the particular profession involved. While the former refers to the civil professional bodies in Nigeria, the latter points to the military profession in Nigeria. It is critical to the analogy of professional misconduct in the civil or military profession as both lack definitive elements hence the disciplinary committee is vested with discretional power to adjudge “a registered person guilty of infamous conduct in any professional respect”. It is against this background that this paper intends to discuss the likely dangers inherent in the different attitudes of the appellate court towards issues that are similar in origin, nature and results.

CASES OF PROFESSIONAL MISCONDUCT IN CIVIL PROFESSIONS

5.     The following are cases where perpetrators of professional misconduct in civil professions were tried and duly punished even when the elements of their offence were not written down in the enabling statutes.

1. In Ndukwe v Legal Practitioners Disciplinary Committee and Another [5], a lawyer was charged with infamous conduct in a professional respect for failure to pay over the money he recovered for a Client to the Client. He was found guilty as charged, convicted and was punished for infamous conduct in a professional respect pursuant to Section 11(1) of the Legal Practitioners Act, Cap 207, LFN 1990. The Section provides as follows:

11. (1) Where:

(a) a person whose name is on the roll is judged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect; or

 (b) a person whose name is on the roll is convicted, by any court in Nigeria having power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the disciplinary committee is incompatible with the status of a legal practitioner; or 

 (c) the disciplinary committee is satisfied that the name of any person has been fraudulently enrolled, the disciplinary committee, may, if it thinks fit, give a direction: 

 (i) ordering the registrar to strike that person’s name off the roll, or 

 (ii) suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction, or 

 (iii) admonishing that person, and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require.

Note that “failure or delay to pay over money recovered for a client” was not written as an offence in any law rather what is written is if the erring member is “judged by the disciplinary committee to be guilty”.

2.         In Pharmacists Board of Nigeria v. Franklin Adegbesote [6], leaving a photocopy of the Pharmacist’s Certificate at a drug shop not registered with the Pharmacists Council of Nigeria under section 22 of the Poison and Pharmacy Act Cap 152, LFN requiring the drug shops to be registered with PCN was charged and found to be infamous conduct against the pharmacist, Mr Franklin Adegbesote. Leaving a photocopy of a Pharmacist’s Certificate was not written down in the Act or any other law as an offence, yet the act was affirmed to be well founded by appellate courts.  He only escaped conviction and punishment at Appellate Court because it could not be proved that the Pharmacist deliberately kept a photocopy of his certificate in the drug shop.

3.       In Alalade v. Accountants’ Disciplinary Tribunal of Nigeria [7] receiving money to invest by increasing share capital of a company and professional fees for that service and failing to render such service but falsely reporting to the client that the accountant had increased the share capital when he did not do same was charged and indicted under Section 12(1) of the Institute of Chartered Accountants Act, 1965. The Act does not contain the particular acts with which the Appellant was charged as section 12(1) only contains as follows:

12. Penalties for unprofessional conduct, ect.

(1) Where-

1. a member is judged by the Tribunal to be guilty of infamous conduct in any professional respect; or
2. a member is convicted, by any court in Nigeria or elsewhere having power to award imprisonment, for an offence (whether or not punishable with imprisonment) which in the opinion of the tribunal is incompatible with his status as an accountant; or
3. the tribunal is satisfied that the name of any person has been fraudulently registered, the Tribunal may, if it thinks fit give a direction reprimanding that person or order the register to strike his name off the relevant part of the register.  

The tribunal fairly summarized the evidence and concluded that the Appellant was guilty of professional misconduct within the provisions of section 12 Institute of Chartered Accountants Act, 1965 and ordered the striking out of his name from the register. On appeal to the Supreme Court, the Court dismissing the Appeal held that the Appellant:

1. Was a practising accountant within the provisions of the Act.
2. That the charges against him were all of a professional character and not offence within the criminal code;
3. That the trial before the tribunal was transparently fair and no cause has been shown to warrant any interference with their finding by this court. 

Case dismissed. 

1. In the case of Medical and Dental Practitioners Disciplinary Tribunal vs Okonkwo [8], whether the failure to disclose in the charge, particulars of the Code of Ethics which a medical Practitioner is accused of contravening, renders disciplinary proceedings against him a nullity was an issue. In response thereto, the Supreme Court held that: 

The evidence in casu did not establish that the respondent was misled regarding the nature of the charge against him. The court was unable to find that any miscarriage of justice had occurred. The charge as framed was therefore not defective [9]. 

In the above-mentioned case, the Respondent was charged and convicted on his failure to perform blood transfusion on a patient during surgery whereat the Patient died, an act the Medical and Dental Practitioners Disciplinary Tribunal adjudged to be an act of professional misconduct. Section 16 of the Medical and Dental Practitioners Act Cap M8, 2004, Laws of the Federation of Nigeria under which the Medical doctor was charged provides in sub-section 1 as follows: 

16. Penalties for professional misconduct, etc.

1. Where:

(a) a registered person is adjudged by the Disciplinary Tribunal to be guilty of infamous conduct in any professional respect; or

(b) a registered person is convicted, by any Court of Law or Tribunal in Nigeria or elsewhere having power to impose imprisonment, for an offence (whether or not an offence punishable with imprisonment) which in the opinion of the Disciplinary Tribunal is incompatible with the status of a medical practitioner or dental surgeon, as the case may be; or

(c) the Disciplinary Tribunal is satisfied that the name of any person has been fraudulently registered, the Disciplinary Tribunal may, if it thinks fit, give any of the directions specified in subsection (2) of this section.

6.     In none of the statutes mentioned above can the particulars or the exact act that constitute each of the offences with which the accused professional was charged and convicted even at the apex court be found. This being the case, why will what constitute an offence when a charge is preferred under Conduct to Prejudice of Service Discipline be written at Section 103 of AFA which contains the Professional Misconduct in the military profession? Another question is if indictment, convictions and punishment flow from charges under infamous conduct section of the mentioned Acts, why would the appellate courts in Nigeria nullify convictions emanating from charges of conduct to the prejudice of Military Discipline under Section 103 of AFA on the ground that the ingredients of what constitute conduct prejudicial to military discipline are not written in the law?

This was what happened in the case of Captain Asake v. Nigerian Army Council & Another, where the professional misconduct of borrowing money from one’s junior in rank forbidden in the military as conduct to the prejudice of service discipline was rejected as such by the court of appeal on the ground that section 103 of AFA does not contain the elements or particulars of that offence as charged. A summary of the court of appeal proceedings and its judgment which speaks for itself is hereunder stated.

Summary of the Judgment                                                                                                                    

In Captain GNH Asake V. The Nigerian Army Council & Anor [10]                                                

The case of the prosecution was that while the appellant was a member of the Nigerian contingent on Operation Liberty to Liberia in 1991, he borrowed the sum of US $300 from L/Cpl Yau Suleiman who was also a member of the contingent. 

He was court-martialled, tried, convicted and punished for this charge brought under section 71 of Nigerian Army Act 1960 (now repealed), equivalent to Section 103 (1) of AFA. He appealed against his conviction to the court of Appeal and the proceeding evolved as follows: 

Issue for Determination 

(1) The main issue couched for determination of the appeal reads as follows:

(a) Whether on the totality of the pieces of evidence before the Military Court, the guilt of the accused person was proved beyond all reasonable doubt.

Argument for the Appellant

(ii) Arguing issue 1, Learned counsel for the appellant maintained that the prosecution needed to prove that the appellant indeed borrowed the sum of $300 US from L/Cpl Yau Suleiman and that borrowing of money is prohibited or is an offence under military law or regulation.

Argument for the Respondent 

(iii) Arguing issue 1, learned counsel for the respondent took off with the point whether the act of borrowing money from a subordinate constituted an offence. He referred to Manual of Military Law, 1972, Chapter 1, paragraph 6 and section 2(iv) of same. He submitted that borrowing of money by an officer from his subordinate in inappropriate circumstances constituted an offence.

Judgment of the Court

(iv) I strongly feel that an act that will constitute an offence cannot be left to conjecture at the whims and caprices of the GOC 2 Mech. Division, Nigerian Army. 

(v) I agree with the appellant’s counsel that borrowing of money is not an offence under section 71 of the Nigerian Army Act, 1960. Therefore, the arraignment, conviction and sentence imposed on the appellant are nullities and must be set aside anon.

(vi) The respondent never proved any offence let alone proving beyond reasonable doubt.

(vii) I also set aside the conviction and sentence of the Military Court and the Confirming Authority and discharge and acquit the appellant.
Appeal allowed.

Note that the court of appeal upturned the court-martial judgment in this case irrespective of the fact that the offence of a Superior borrowing money from a Subordinate is evidenced in the manual of military law cited before the court of appeal.Unfortunately, the court never bothered that justice to a Superior borrowing money from a Subordinate in the civil community is not justice to the Superior borrowing money from a Subordinate in the military even when the same court of appeal never asked for elements of the offence when erring civil professionals are involved. Besides, the military  law is a  lex speciali.   At this juncture, let us all be reminded that justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking  the judge was biased, as opined by Lord Denning in Metropolitan Properties Lannon [11].  

THE DANGER OF UPTURNING COURTS-MARTIAL CONVICTIONS ON CHARGES OF CONDUCT TO THE PREJUDICE OF SERVICE DISCIPLINE 

7.     While it cannot be predicted when the attitude of court of appeal towards convictions on charges of conduct to the prejudice of service discipline under section 103 of AFA will change, the fact remains that the dangerous impact to military justice system in Nigeria will continue to soar and this is an ill-wind that blows no one any good. Mean while continuation of this dangerous trend will continue to increase: 

(a) Encouragement of indiscipline among troops who are direct and indirect beneficiaries of upturned court-martial convictions on section 103 of AFA.

(b) Discouragement of law enforcement in the military as court o f appeal decisions would demoralize and weaken the law enforcement efforts in the military.

(c) Disservice to military security to Nigeria and Nigerians as troops’ effort to perform their duty diligently is discouraged whenever   culprits are unwittingly applauded by upturned judgement.

(d) Lowering standard of military productivity. 

(e) Demoralizing the victims of indiscipline.

CONCLUSION. 

8.     This paper has analyzed the similarities between professional misconduct and conduct to the prejudice of service discipline. Both are generic offences hence disciplinary committees are vested with discretion to determine what constitute the offence at any given case. Also observed is that while the vague nature of this offence has not resulted to nullification of conviction at appellate court with civil professions, same is not the case with courts-martial convictions on the charge of conduct to the prejudice of service discipline which is the equivalent of professional misconduct. The paper has thereafter concluded that the impact of treating similar violations with different attitudes is detrimental to military professionalism which is an ill-wind that blows no one any good.

Footnotes

[1] https://en.m.wikipedia.org>wiki

[2]  Manual of military law Part 1, 1972, p.350

[3] Ibid

[4]  Ibid

[5] (2007) 2 All N.L.R. 417

[6]  Suit No: SC.68/1986 dated 28th Nov 1986

[7] SC 242/74

[8] (SC 123/1999)

[9] Per Ayoola, JSC, at page 309.

[10] (2006)LCN/1985(CA)

[11] 1968  ALL ER304