buokorie

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

Whether the manner of appointment of court-martial members affects its independence is a question many critics will quickly respond to with “yes”. But will it surprise you to hear that court-martial enjoys greater independence than the civil court? Don’t be surprised because the Armed Forces Act CAP. A20, LFN, 2004 (AFA) has made it possible. The convening officer, therefore, is not at liberty to appoint whomever he likes to be a member of a court-martial he is convening. See sections 133 and 134 of the AFA to clear your doubt. For instance section 133(2) provides that: 

“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 the aggregate to not less than five years”. 

The above provision simply means that a potential court-martial member must not only be controllable by the AFA but must also be competent and rich in service knowledge by virtue of his total years of service in the entire Military not being less than five years.

 Besides: 

“An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused and any other officer who has investigated the charge against the accused, or who under service law has held or has acted as one of the persons holding an inquiry into matters relating to the subject matter of the charge against the accused, shall not sit as a member of a court-martial or act as Judge advocate at the court-martial”. (See section 134 (2) of AFA) 

 The above provision simply means that no officer who had known the accused either    as his immediate past commander or as having investigated him on the issue at stake  can be a member of any court-martial set up to try the accused. Such an officer can’t even be a Judge Advocate in such a court.

 In the case of Karim Vs. Army,(2001) 4 NWLR, the court held that:

“A General Court-Martial is the creation of statute and as a body or tribunal as created it must be convened and constituted in conformity with the provision of the enabling statute or else it is without jurisdiction”.

The AFA has provided both substantial and procedural rules that must be obeyed by both the convening authority and the court-martial itself, at least, to save the court-martial judgments from merciless reviews of the civilian appellate courts. See the case of Akono V. Nigerian Army (2000) F.W.L.R (Pt.28) 2212 at 2229 where the court of Appeal stated that: 

“It is mandatory in order to maintain strict discipline in the Armed Forces that an officer must be tried by his peers. A convening officer who is unable to find suitable officers in his service can borrow suitable officers from other services”. 

Suffice it to say that the AFA has provided every safe guard necessary for every court-martial to operate in an environment of independence and impartiality. For instance, I recall during one of my stints as a Judge advocate, the President of a court-martial saying that he would not  go close to the convening officer for any reason whatsoever  until he was done with his duty as the President of that very court-martial. The reality from the above is that the manner of appointment of court-martial members is properly safeguarded for optimum compliance with the constitutionally required independence and impartiality of the court. For more on this subject, please see Chapter 2 of my Book entitled, Introduction to Military Law Practice and Procedure in Nigeria.                  

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: 

1. Whether the extant military law requires a court-martial to sign and date its judgment the same day it is announced?
2. 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:

1.  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.
2. 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.
3. 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