FACTS

This appeal is against the decision of the General Court Martial, convened by the Commander, Army Headquarters Garrison, Abuja, for the trial of the Appellant for the offence of murder, contrary to Section 106 (c) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004.

In its judgment which was delivered on November 26,2015, the General Court Martial held that the Appellant did not have the mens rea or guilty intent to kill the deceased and consequently convicted him of the lesser offence of manslaughter and sentenced him to life imprisonment.

Having obtained the requisite leave, the Appellant who was dissatisfied with the decision appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on a sole issue thus:“Whether the Court Martial as constituted had the requisite jurisdiction to try and convict the Appellant?”

APPELLANT’S SUBMISSION

It is the Appellant’s contention that the conditions precedent to his trial by the General Court Martial were not complied with as the allegation against him was not reported to his Commanding Officer for prior investigation as stipulated in Sections 123-125 of the Armed Forces Act. It was posited that the Appellant was in consequence prejudiced as he also did not have adequate time to prepare for his defence as he was not served the prescribed pre-trial documents as required by Rule 19 of the Rules of Procedure Army (1972). His right to fair hearing under Section 36 (6) (b) of the 1999 Constitution was thus infringed upon.

Appellant further contended that the General Court Martial that convicted him changed in composition from hearing to judgment and that an unsworn member participated in the decision. It was contended that on the day of final addresses, a waiting member was drafted in for a Member who was not available and the said Waiting Member was not shown to have been sworn or affirmed but participated in the decision of the General Court Martial, even though he did not have the opportunity of observing the witnesses or hearing their testimony.  This was in contravention of Section 13 of the Armed Forces Act and Rules 2 and 34 of the Army Rules of Procedure and the effect was to render the proceedings a nullity. The cases of YAKUBU vs. CHIEF OF NAVAL STAFF (2004) 1 NWLR (PT 853) 93; (2003) LPELR-10399(CA) and ZURU vs. CHIEF OF NAVAL STAFF (2012) AFLR (PT. 1) and NWALUTU vs. NBA (2019) 8 NWLR (PT 1673) 174 at 193; (2019) LPELR-46916(SC) were referred to.

RESPONDENT’S SUBMISSION

The Respondent submits that as required by Section 123 of the Armed Forces Act, the allegation against the Appellant was investigated and the Appellant was interrogated and he also volunteered a statement, just as did the other witnesses. It was opined that the investigation done by the Military Police upon the instructions of the Commanding Officer fulfilled the requirements of the law. It was argued that the Appellant was given adequate time to prepare his defence as the charge was only made and served on the Appellant almost six months after investigation had commenced. It was stated that the Appellant’s contention in this regard was reliance on undue technicalities to defeat the ends of justice. The case of NZEKWE vs. ANAEKWENEGBU (2019) 8 NWLR (PT 1674) 249; (2019) LPELR-49002(SC) was called in aid. It was further stated that fair hearing is for both parties in litigation and that Appellant was given enough time to prepare for and present his case. The case of IGWE vs. THE STATE (2021) LPELR-55336 at 20-21 was cited in support.

On whether the General Court Martial was properly constituted, it was submitted that a Waiting Member is part of a Court Martial and was duly sworn in with the others, even though as Waiting Members they are only to be seen and not to be heard until their services are required when a substantive member is indisposed, citing OBISI vs. CHIEF OF NAVAL STAFF (2004) LPELR-2184 (SC) at 10. It was contended that it is to be presumed that the Waiting Members and other Members of the General Court Martial were all duly sworn at the inauguration before the General Court Martial started its proceedings. It was stated that the presumption of regularity under Section 167 of the Evidence Act demands the presumption that the inauguration of the General Court Martial was done in a regular manner. The case of NIGERIAN AIRFORCE vs. JAMES (2002) LPELR-3191 (SC) at 16-17 was referred to.

In conclusion, Respondent argued that the Appellant not having raised any objection to the reconstitution of the General Court Martial when it was done, implied that he had waived his right as held in ADETA vs. NIG ARMY (2016) LPELR-40235 (CA) at 18-19.

APPELLANT’S REPLY

In reply, Appellant argued that the requirement of Section 123 of the Armed Forces Act is that the Appellant is to be investigated by his Commanding Officer in the first instance and not the Military Police. It was stated that the discretion under Section 124 of the Armed Forces Act only arises after the mandatory investigation by the Commanding Officer under Section 123 of the Armed Forces Act. It was argued that the constitutional provision for adequate time and facilities to prepare defence is not about length of time from investigation to trial alone, but compliance with the extant provisions that give the accused person the opportunity to prepare his defence.

On the application of the presumption of regularity, it was stated that it cannot be invoked to alter established facts and that the Records of Appeal captures the fact that Waiting Members were not mentioned among the category of people that took oath.

RESOLUTION OF THE ISSUE

As a starting point, the Court noted that the issue for determination raises the question of the jurisdiction of the Court Martial to have tried the allegation. The Court noted that even though a Court Martial is unlike a conventional Court and can be equated to a jury trial, nevertheless the concept of jurisdiction and the incidents of jurisdiction are applicable to a Court Martial with the same force as it does to a conventional Court. See OLOWU vs. THE NIGERIAN NAVY (2011) 12 SC (PT II) 1; (2011) LPELR-3127(SC), MAGAJI vs. THE NIGERIAN ARMY (2008) 3 SCNJ 82; (2008) LPELR-1814(SC).

Having stated as above, the court stated that the essence of Sections 123-125 of the Armed Forces Act is for the allegation against a service person to be investigated before a decision is taken on whether he is to be tried summarily or by a Court Martial. The section does not make it mandatory for the Commanding Officer to personally conduct the investigation. Thus, It was not fatal that it was not the Commanding Officer that conducted the investigation, as the purpose and intention of the section was for there to be an investigation. Moreover, since the Appellant was represented by counsel at the General Court Martial, the issue about any defect arising from non-compliance with Section 123 of the Armed Forces Act was deemed to have been waived, having not been raised at the Court Martial. See the cases of IBRAHIM vs. THE STATE (2018) 1 NWLR (PT 1600) 279 at 319-320, MAGAJI vs. THE NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 at 384.

On the Appellant’s contention that he was not given adequate time to prepare for his defence as the pre-trial documents were not served on him, the court examined the Record of Appeal and held that from the Record, it was evident that the Charge was duly served on the Appellant. As such, the pre-trial documents must be taken to have been duly served on the Appellant as a presumption of authenticity and correctness inures in favour of the Records of Appeal. See the cases of HASKE vs. MAGAJI (2009) ALL FWLR (PT 461) 887 at 904; (2008) LPELR-8330(CA), NUHU vs. OGELE (2003) 18 NWLR (PT 852) 251 at 272; (2003) LPELR-2077(SC). In addition, the Appellant who was represented by counsel at all stages of the proceedings did not raise any issue that the Appellant did not have the necessary materials or did not have adequate time to prepare for his defence. See OLUFEMI vs. NIGERIAN ARMY (2022) LPELR (58041) 1 at 28-31.

On the Appellant’s contention that an unsworn Waiting Member participated in the decision, the Court examined the Records of Appeal and held that from the Records, it was apparent that the President and Members of the Court Martial were duly sworn. Thus, all Members, Waiting or otherwise, were administered the oath. The court then went further to examine the implication of the Waiting Member who didn’t hear evidence but participated in the decision. The Respondent on this point contended that the Appellant had waived his right to object since he did not complain at the time on the participation of the said Waiting Member. The Respondent further cited the case of NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 62 to argue that a mere variation in the composition of a panel or tribunal or court, which does not affect the substance of the inquiry, does not render the judgment or decision a nullity. Disagreeing with the Respondent, the Court held that the current position of the law is that such variation in the composition of the General Court Martial, when the Waiting Member who did not hear the evidence but participated in arriving at the final decision, rendered the entire proceedings a nullity. See the cases of KALEJAIYE vs. LPDC (2019) LPELR (47035) 1 at 18-23, 26-30 and 30-33, NWALUTU vs. NBA (2019) LPELR (46916) 1 at 21-25, 27-29 and 30-32 and MUYIDEEN vs. NBA (2021) LPELR (55885) 1 at 9-10, 29-30, 30-31, 42-44 and 47-48.

HELD

The court held that the trial and conviction of the Appellant amounted to a nullity. The Court therefore remitted the case back to the Convening Authority i.e. the Commander Army Headquarters Garrison, Abuja, to convene another General Court Martial.

Appearances:

Marx Ikongbeh, Esq. with him, Ms. Chidinma Okafor

For Appellant(s)

Akintola Balogun, Esq.

For Respondent(s)

Compiled by LawPavilion.

OGHAEKOR v. NIGERIAN ARMY

CITATION: (2023) LPELR-60573(CA)

In the Court of Appeal

In the Abuja Judicial Division

Holden at Abuja

ON THURSDAY, 6TH JULY, 2023

Suit No: CA/ABJ/CR/264/2021

Before Their Lordships:

PETER OLABISI IGE

Justice, Court of Appeal

ELFRIEDA OLUWAYEMISI

WILLIAMS-DAWODU

Justice, Court of Appeal

UGOCHUKWU ANTHONY OGAKWU

Justice, Court of Appeal

Between

PTE. JOHN OGHAEKOR

-Appellant(s)

And

NIGERIAN ARMY

-Respondent(s)

Leading judgment delivered by Ugochukwu Anthony Ogakwu, J.C.A.