Effect of General Court-Martial not properly constituted –SC
To this argument, I shall refer to the stand of this court on such a proposed estoppel or waiver to a discourse on jurisdiction at the appellate court even at the Supreme Court in such circumstances. The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346; a judgment of this Court […]
To this argument, I shall refer to the stand of this court on such a proposed estoppel or waiver to a discourse on jurisdiction at the appellate court even at the Supreme Court in such circumstances. The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346; a judgment of this Court per Niki Tobi JSC as he stated:-
“Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Noncompliance with the rules which affect the very foundation, or props of the case/cannot be treated by the court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of assistance to the adverse party. The defence of waiver lacks merit and I so hold”.
From a clearer view of what we are grappling with, I shall quote the salient parts of the judgment of the court below which is as follows:-
“I shall reproduce verbatim the argument of the learned counsel for the appellant on issue one as follows:-
“We humbly submit that the special Court Martial that tried and sentence (sic) the appellant lacked jurisdiction on account of improper constitution.
Contrary to the provisions of the Armed Forces Decree No. 105 of 1993, one of the officers Captain E.D Bashir junior officer to the Appellant sat on the tribunal that tried and convicted the appellant without satisfying certain conditions precedent i.e. obtaining the consent of a superior before constituting the special Court Martial. It is our submission that failure to satisfy the condition precedent robs the special Court Martial of jurisdiction to try the appellant which goes to the root of this finding”.
“That was all as far as issue one is concerned”.
“The complaint of the appellant has to do with Section 133(b) which states:-
133(b): Where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused”.
The tragedy of this issue is that, apart from the argument of learned counsel for the appellant in their brief that Captain I. D. Bashir, a member of the court was lower in rank to the Appellant, there is no evidence to support this.
As was observed by learned counsel for the respondent, both the appellant and I.D. Bashir are all captains and that being the case, there is no breach of Section 133 (b) of the act. At the court below, this issue was never raised. It only surfaces in the brief of the appellant. How does the appellant expect this court to verify whether Captain I.D. Bashir was a junior to him or not, especially when the respondent also asserts that they are equal in rank?
I need not waste more time on this issue, as the appellant appears not to have been serious in putting forward his case on this issue. Without anything to the contrary, I think the Court Martial was properly constituted having regard to Section 150 of the Evidence Act. Issue one therefore does not avail the Appellant at all (underlining ours)”.
To get back on track, what is at play is whether or not there was jurisdiction in the Court Martial to try and determine the case against the appellant. The undisputed facts are:
1. the panel was made up of Lt. Col. S. O. Olojede (N/6183) President, Major M. I. Uzzi (N/6713) member, Captain J. M. Aboki (N/7958) member, Captain LD. Bashir (N/9493) member.
2. The appellant’s number was N/9043 which no doubt places Appellant senior to I. D. Bashir.
3. The defect of this composition was not raised by the appellant at the trial but by counsel at the Court of Appeal in appellant’s Brief of Arguments.
4. The Court of Appeal remarking on the jurisdictional point raised in that Appellant’s Brief of Argument dismissed it with ease on the ground that the Constitution of the Court Martial was properly made.
These facts now taken within what is now trite on when a court is properly constituted and when jurisdiction resides in a court or is absent, I would say that this case presents a face akin to what this court was faced with in the Agbiti case (supra). This Court had stated clearly that the composition of members of the Court is a condition precedent imposed by statute and the non-compliance with the provisions of Section 133 of the Armed Forces Act strips the Tribunal of competence and so where the Court Martial lacks jurisdiction to try the appellant, all the proceedings in the trial and the verdict automatically come to naught. In the Agbiti case, two members were junior to the Appellant and that led to the incompetence of the Court. In this instance, one member is junior to the Appellant which in my humble view would suffer the same fate as the law made it clear that just one member who is junior would suffice to scuttle both the Court Martial and all its proceedings. There is no distinguishing feature between the case in hand and that of Agbiti v. Nigeria Navy (supra) as the Madukolu v. Nkemdilim (supra) had offered the earlier guide on both the matter of a member disqualified would affect fundamentally the competence and jurisdiction of the court and the matter of appropriate composition being a condition precedent which must be fulfilled without exception and in this instance that failure is fatal.
It is in the light of the above that the respondents positing that the appellant not availing himself of the provisions of Section 137(1) to (5) of the Armed Forces Act at the Special Court Martial is now forever estopped from raising the issue is too hard a pill to swallow. That Section provides thus:-
“137 (1) – An accused about to be tried by a Court Martial shall be entitled to object, on any reasonable grounds, to any member of the Court Martial or the waiting member whether appointed originally or in lieu of another officer.”
The respondents anchoring on Section 137 (1) of the Armed Forces Act and appellant’s failure to utilise same for the appeal to be favourably determined in appellant’s favour would not fly. The reasons have already been stated but at the risk of repetition I would adopt the Court of Appeal decision in Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt.647) where the appellant, a Major in the Nigerian Army was tried by a panel consisting of, inter alia, two Captains who were below his rank and when asked in compliance with Section 137 of the Act whether he objected to the constitution of the panel, he answered in the negative and the Court Martial went on and thereafter convicted him. On appeal to the Court of Appeal and the matter of a defective composition based on those two juniors was raised by appellant’s counsel, the Court of Appeal per Adamu JCA held:
“The failure of a party to raise an objection at a court martial as to the membership of unqualified officers on the court martial is not a bar, waiver or an estoppel for the said party to raise objection to the jurisdiction of the court martial on appeal. This is in line with the principle that a party cannot by consent or otherwise confer jurisdiction on a court where the Court has no jurisdiction to entertain the action. In the instant case, the contention of the Respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, has waived his right to subsequently complain or he has thereby conferred on the said court martial, the jurisdiction that it did not have, has no substance in law”.
The 2nd respondent had raised the point that though Captain I.D Bashir was junior and therefore disqualified, the fact that in keeping with Section 129 (b) of the Armed Forces Act 2004 the quorum was in order with the president and two other members, the competence of the Court was not impugned. That argument, in my view, would not stand in the light of what is required for the jurisdiction of a court property constituted as has become trite, that is, once a member is disqualified and the panel or court goes on with the proceedings, everything done by that Court would collapse as the disqualification of anyone or more members renders the entire court incompetent and without jurisdiction. Section 133 of the Armed Forces Act so provided and the cases of Madukolu v Nkemdilim (supra); Agbiti v. Nigerian Army (supra) have ensured the mandatoriness of the compliance and not those defects that are redeemable or could be waived or treated as a mere irregularity not going to the root.
Before I conclude, I must say, this is one of those instances where the Supreme Court or an Appellate Court so positioned can intervene and disturb the concurrent findings and conclusions of two courts below. The reasons herein are that there has been a violation of some principles of law and procedure which have created a miscarriage of justice and so leaving me no option than to chart a different route. I rely on Alhaji Ganiyu Martins v. Commissioner of Police (2012) 12 MJSC (Pt.11) 73 at 93-94.
From the above, this appeal is meritorious and I allow it, I set aside the judgment of the Court of Appeal which had affirmed the decision, conviction and sentence of the appellant. The Special Court Martial lacking in competence and thereby acting without jurisdiction, all its proceedings have accordingly been nullified, and hereby struck out.
Appeal allowed.
Appearances
Chief Theo Nkire and with him: Chikodi Okeorji, C. N. Njaka, C. S. Dilibe (Miss), Chimere Akoma: For the Appelants
Toyin Bashorun (Ms) for the 1st Respondent and with her: Malam J. A. Ada.
Chiesonu I. Okpoko Assistant Director Federal Ministry of Justice and with him: Mrs. H. Chime (A.C.S.C.), Mrs. N. Chuka-Osadebe (S.C) for 2nd Respondent: For the Respondents.
Concluded.