THE DANGER OF UPTURNING COURTS-MARTIAL CONVICTIONS ON CHARGES OF CONDUCT TO THE PREJUDICE OF SERVICE DISCIPLINE
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.
- 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-
- a member is judged by the Tribunal to be guilty of infamous conduct in any professional respect; or
- 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
- 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:
- Was a practising accountant within the provisions of the Act.
- That the charges against him were all of a professional character and not offence within the criminal code;
- 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.
- 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:
- Penalties for professional misconduct, etc.
- 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
