By SALAM OLAMILEKAN ISMAILA

INTRODUCTION;

Generally, the Nigerian legal system has so long shown its instability and unreliability in retaining the standard required, as to the practical aspects of the enshrined laws and acts across the country. There has been a long time notion on the inadmissibility and ineffectiveness of the Evidence Act 20111 in court martial but not of effect in today legal parlance, where many exceptions have altered the Act through the technique of the judicial precedents and decided cases. Obviously, the instability and unreliability of the Nigerian legal system has clearly brought a shaking mind in believing its authenticity in application. Although, the Constitution 2 may not expressly provide provision for the Court Martial, but a reference was made in Section 2403 of the 1999 Constitution, which it was of the effect that an appeal from Court Martial shall goes directly to the Court of Appeal.

POSITION OF EVIDENCE ACT 2011 ON ITS APPLICATION IN COURT MARTIAL;

It is a clear notion and unarguably, that the effect of Section 256, sub 14 of the Evidence Act 2011 has openly counted out the court martial among all other courts where the Act can be applied. To the effect, Section 256 (1)says ;

This act shall apply to all judicial proceedings in or before any court established in application, the Federal Republic of Nigeria but it shall not apply to ; (b) a field general court martial.

Although, the field general court martial mentioned in the Evidence Act provision above, had long time been abolished by the Armed Forces Act 20045, which later gave rise to the existences of General and Special court martial, in Section 139 of the Armed Forces Act. The main purpose of these courts are to maintain and entertain matters arising from military affairs. Preferably, it worth noting down, that the court martial has civil jurisdiction to try a military man but to some extent and again, the court martial still maintain its position  as special court of criminal jurisdiction. It’s a court of special court of criminal jurisdiction because it mainly created and strictly for adjudication cases concerning Army, Navy and Air force officers, i.e military men.

EXCEPTION, DYNAMISM, AND ALTERATION OF SECTION 256(1) OF THE EVIDENCE ACT 2011;

Intriguingly, the power given to the judiciary in respect to section 6(6)6 of the 1999 Constitution of the Federal Republic of Nigeria , has contributed to their empowerment in interpreting, expounding and even to the extent of construing the law, for the purpose of arriving at a just conclusion. Absolutely, the constitution happened to be the one who created and empowered the judiciary, but practically, the judiciary solemnly operate as the fon t e rigo of all other laws and also as th body with last say , in respect to any matter arising.

In the light above, plethora of cases have been presided over by the court martial which factually negated and altered the provision of Section 256 of the Evidence Act.  In instances, the case of AHMED V NIGERIAN NAVY , (2017) LPELR – CA/L/1163/20147 ;

“It is necessary that I have recourse to the time tested road map on how the guilt of an accused can be established and it is thus:-

The guilt of an accused person can be proved by

(a) the confessional statement of the accused person; or

(b) circumstantial evidence; or

(c) evidence of eye-witness of the crime.

Thus, the prosecution does not always need an eye-witness account to convict an accused of any offence including rape, if the charge can otherwise be proved.

Igabele v. State (2006) 6 NWLR (pt. 975) 100 at 120 – 121; 130 (SC)8; Lori v. State (1980) 8 -11 SC 819; Emeka v. State (2001) 14 NWLR (pt. 734) 66610.

The burden of proving a charge against an accused person is upon the prosecution. However, once the prosecution has adduced evidence which includes circumstantial evidence, which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of Sections 138 (3), 139,141 and 143 of the Evidence Act”11

 Also, we have seen copious of cases where the EVIDENCE ACT 2011 has been fully applied, parts are ;  MAGAJI V NIGERIAN ARMY (2008) LPELR-SC.204/200412; ZAKARI V NIGERIAN ARMY & ANOR (2015) LPELR.SC.456/201213; SAMUEL & ORS V NIGERIAN ARMY (2006) LPELR-CA/1/134/200214.

Surprisingly, the aforementioned case made a U turn  and also created an exceptional circumstance where the Evidence Act have been fully applied.  Moreover, the case cited above has openly altered the said provision of the Evidence Act 2011, Section 25615 precisely. In court martial, it can be derived and inferred on the bases that court martial, especially the General Court Martial do not always adhere to the strictness of the law and the standard of protocol required. In this case, MAGAJI V NIGERIAN ARMY, Supreme Court Observed;

“It must be born in mind that the General Court martial cannot be equated to the regular courts, where strict procedures are required. It is no more than a tribunal court and at best, it can be equated with a jury trial” .16

CONCLUSION;

Sufficiently, dynamism has found its way of surviving in the Nigerian Legal System, which its continuity keeps reiterating, as exceptions to the general rules never stopped in paving ways in the day to day legal proceeedings.It has been cleared and finalised through the observation of the Supreme Court in the case of MAGAJI V NIGERIAN ARMY17 , that the Court Martial, most especiall General Court Martial does not always strict to the due protocol of law. Through this article, hopefully the general perspectives of the public may have been cleared that there a lots of exceptions to the inadmissibility of the Evidence Act 2011 in Court Martial.

By SALAM OLAMILEKAN ISMAILA

Gmail; [email protected]

 

REFRECING

  1. Evidence Act 2011 LFN, CAP E14
  2. CFRN, 1999 as amended
  3. Supra
  4. Ibid
  5. Armed Forces Act 2004, LFN
  6. Ibid
  7. Ahmed vs Nigerian Navy , lawcareNigeria.com
  8. Lori vs state, lawcareNigeria.com
  9. Igabele vs State , lawcareNigeria.com
  10. Emeka vs State, lawcareNigeria.com
  11. Ibid
  12. Magaji vs Nigerian , lawcareNigeria.com
  13. Zakari vs Nigerian Army , lawcareNigeria.com
  14. Samuel & ors vs Nigerian Army
  15. Ibid
  16. Ibid
  17. Supra
  18. Lecture Note on Law of Evidence by Dr. Sani Abdullahi at Faculty of Law , ABU, Zaria.