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.