Effect of General Court-Martial not properly constituted -SC

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): Appellant was a Captain in the Nigerian Army and at the time of the alleged offence serving as Chairman of the Task Force attached to the NITEL Office Iponri Lagos. On the trial and conviction on a one count charge of conduct prejudicial to service discipline, the […]

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): Appellant was a Captain in the Nigerian Army and at the time of the alleged offence serving as Chairman of the Task Force attached to the NITEL Office Iponri Lagos. On the trial and conviction on a one count charge of conduct prejudicial to service discipline, the Appellant was sentenced to a term of two years in prison.
Not satisfied with that judgment and sentence, appellant appealed to the Court of Appeal or Court below on the ground that the trial Court Martial was not properly constituted and therefore lacked jurisdiction when it tried the appellant. The Court below dismissed the appeal thereby affirming the decision of the trial Court Martial. Being further dissatisfied, the Appellant has come before this Court on four grounds of appeal.
BACKGROUND FACTS:
The appellant while serving in the Nigerian Army was appointed Chairman of Task Force and deployed to Iponri NITEL Exchange for investigation on the allegation that certain NITEL lines were used for illegal (419) businesses. In the course of performing his duties, the appellant arrested a staff of Chayoma Ventures for interrogation following a tip-off that the company was into fraudulent business otherwise known as ‘419’. The said staff was handed over to Mr. Odibo Isaac who was a Customer Engineering Manager with NITEL, Iponri Exchange at that time with instruction to investigate the file of the said company. When the appellant returned to the office that day, Mr. Isaac Odibo gave him an envelope containing the sum of N40,000.00 (Forty Thousand Naira) an amount given to the appellant by the Managing Director of Chayoma Ventures. The appellant took the money and in appreciation gave N5,000.00 (Five Thousand Naira) to Isaac Odibo.
The Appellant’s view is that the N40,000.00 was an appreciation by the Managing Director of Chayoma Ventures to the appellant for the time and effort in carrying out the investigation. The Nigerian Army thought otherwise saying the money was given as gratification for the release of the arrested staff of Chayoma Ventures and on that basis convened the Court Martial which tried and convicted the appellant.
SOLE ISSUE:
Whether the Court below was right in dismissing the appellant’s appeal for lacking in merit?
Canvassing the position of the Appellant, Chief Theo Nkire of counsel stated that the appellant was standing trial on a one Count Charge of conduct prejudicial to service discipline contrary to Section 103 of the Armed Forces Decree in the composition of the Court which was as follows:-
1. Lt. Col. S. O. Olojede (N/6183) – president.
2. Maj. MI Uzzi (N/6713) – member
3. Capt. JM Aboki (N/7958) – member
4. Capt. ID Bashir (N/9493) – member.
Learned counsel for appellant said at the time of the said trial, appellant was a Captain (N/9043) in the Nigerian Army and so while the other members of the panel were Seniors to the appellant, the same could not be said of Captain Bashir whose number is N/9493 while appellant’s is N/9043 which situation ran counter to Section 133 of the Armed Forces Act Cap A 20 Laws of the Federation 2004 which stipulated that all members of the Court Martial shall have seniority over the accused/appellant. That though the appellant had not raised that issue at the trial Court and only brought it in at the point of appellant’s Brief at the Court of Appeal, being a matter of competence and jurisdiction of the Court, the Court can raise it suo motu and decide upon it.
For the appellant, it was submitted that jurisdiction cannot be conferred by agreement nor can trial by a court which lacked jurisdiction to so hear the case be justified because a party elected to be tried by that court. He cited Agbiti v. Nigerian Navy (2011) 4 NWLR 174. That it is trite law that jurisdiction, the competence or power of a court to deal with all matters in controversy submitted before it, is the nucleus of all adjudication and so any decision made by a court without jurisdiction including the trial Court Martial is a nullity. He referred to Uti v. Onoyivwe (1991) 1 SCJN 25 at 49.
For the 1st respondent, Ms Toyin Bashorun stated that it is trite that appeals stem from the judgment or findings of the Lower Court hence any issue not raised or canvassed at the Lower Court cannot be argued for the first time on appeal. That an appellate court lacks jurisdiction to go into novel issues or matters which were not decided in the Court below. She cited Ohochukwu v A. G. Rivers State (2012) 2 MJSC (Pt.II) 65 at 95 – 96; Section 36 of the Constitution of the Federation. That there is nothing on which the concurrent findings of the two Courts below could be disturbed. She referred to Alhaji Ganiyu Martins v C.O.P (2012) 12 MISC (Pt.II) 73 at 93 – 94.
For the 2nd respondent learned counsel, Chiesonu Okpoko Esq. contended that Section 137 (1) to (5) of the Armed Forces Act made adequate provisions for the appellant to object and raise the issue of his seniority to Captain I. D. Bashir, a member of the Special Court Martial that tried him. That the appellant ought to have produced the gazette showing his seniority to Captain Bashir in keeping with Section 24 of the Armed Forces Act. Also that even if Captain Bashir was junior, the fact that the quorum of the Court Martial is two with the president, the membership of Captain Bashir would not disqualify the panel. He cited Section 129 (b) of the Armed Forces Act.
In summary, the appellant is of the view that Captain Bashir being a junior officer to the Appellant was not qualified to sit in judgment over appellant in the Special Court Martial and that fact robbed the Court of its jurisdiction which issue can be raised at any time even if at the Supreme Court for the first time and also could be so raised suo motu by the Court. The fact of the matter not having been raised at the trial did not defeat appellant’s right to justice and what the Court below did in raising that issue suo motu was its duty to so do.
The contrary opinion of the 1st respondent is that the issue of Captain I.D. Bashir being an issue not raised at the trial Court Martial and so the case of Agbiti v Nigerian Navy (supra) would not apply in favour of the appellant.
Also, that the concurrent findings of the two courts below cannot be interfered with, the basis for which is not existing.
For the 2nd respondent, his stand is that the Special Court Martial was properly constituted when it tried the appellant and there was no material evidence to support the allegation of the junior status of Captain I. D. Bashir to the appellant. Also, that since the Court was constituted with a president and three other members, the disqualification of Captain Bashir would not divest the Court of jurisdiction to try the appellant.
At the root of this appeal is the jurisdiction of the trial Court Martial which the appellant contends was ousted with the disqualification of one of the members of the panel, a point disagreed with by the respondents. On this point therefore, a journey in time into the case of Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587 would be helpful where Bairamian FJ stated what has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate.
From the guide proffered by Madukolu (supra), the question that crops up is if the Special Court Martial with the requirement of competence or jurisdiction in view of the first condition which if the court was properly constituted and no member is disqualified for one reason or the other.
In seeking to provide an answer, the respondents are of the view that the case of Agbiti v Nigerian Navy (2011) 4 NWLR (Pt.1236) would not be available to the Appellant in a way to get a favourable answer on his behalf as the facts herein are distinguishable.
A reference to Section 133 (1) of the Armed Forces Act is hereby made which provides as follows:-
Section 133 (1):
“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”.
Also of note is the argument of the respondents that the appellant had opportunity in keeping with Section 137 of the Armed Forces Act to raise an objection before the commencement of the trial and he had none and the trial was started and completed and so cannot now want to harp on the constitution of the panel of judges at the trial court to have the judgment set aside.

To be continued