CDR YAKUBU KUDAMBO v. NIGERIAN NAVY
(2014)LCN/6954(CA)
RATIO
DUTY OF COURT: WHETHER AN APPELATE COURT MUST CONSIDER ALL ISSUES FORMULATED BY THE PARTIES
Where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all other issues formulated by the parties see ANYADUBA VS. NIGERIAN RENOUNED TRADING CO. LTD (1992) 5 NWLR (PT 243) 535; OKONJI VS NJOKANMA (1991) 7 NWLR (PT 202) 131 and EBBA VS OGODO (1984) 1 SCNLR 372. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 6th day of March, 2014
CA/L/822/11
JUSTICE
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
CDR YAKUBU KUDAMBO
NN/0808Appellant(s)
AND
NIGERIAN NAVY Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the General Court Martial (GCM) presided over by commodore A.A. Sani Sele pursuant to the Armed Forces Act, CAP. A20 Laws of the Federation 2004 wherein the appellant was convicted on a two count charge of Absence without Leave from the Nigerian Navy and escape from lawful custody. He was accordingly sentenced to a term of two year imprisonment and dismissal from the Armed Forces (Nigerian Navy) respectively for the two offences.
The appellant commander Yakubu Dambo NN/0808 is a senior officer with the Nigerian Navy. His posting was as the (Staff Officer Ratings) Naval Headquarters, Abuja. While under investigation for alleged illegal production, distribution and sales of Batch 13 NNBTS forms at the Naval Headquarters, Abuja, he was invited by the Department of State Security Services, Abuja for an alleged involvement in a case of breach of National Security. The appellant was subsequently detained at the State Security Services detention quarters on the 15-3-2004. However, after five days he escaped from the place of detention on the 19-3-2004. Investigation by the Naval Headquarters, Abuja revealed that, since his escape from detention at the State Security Services detention quarters, the appellant did not establish any contact with any naval personnel or the Nigerian Navy. This was the situation until 8-4-2010 when the appellant surfaced at the Naval Headquarters in his uniform as a commander and accompanied by a lawyer. He was subsequently arrested and detained.
In a circumstantial letter dated 13-12-2010 written by the Headquarters, Naval Training Command to the Flag officer commanding and Signed by Commodore I.E. Ibas (Chief Staff Officer), it was recommended that the appellant be tried for the offence of desertion by a General Court Martial.
A General Court Martial was accordingly constituted via a convening order signed by Rear Admiral James Bamidele Oladimeji, Flag officer, Commanding Naval Training Command Apapa – Lagos.
In the said convening order the following Naval officers were appointed as the President and members of the General Court Martial.
(1) Commodore A.A. Sam-sele NN/0651 President
(2) Captain M.C.L. Bobal NN/1217 member
(3) Captain F.K. Daramola NN/1299 member
(4) Captain P.O. Ikpati NN/1322 member
(5) Captain F.M. Ture NN/1482 member
(6) Captain A. Pindar NN1584 waiting member
(7) Captain T.J. Ayorite NN/1287 judge Advocate
(8) Captain N. Ahmed NN/1427 prosecutor
(9) Commander M.M. Hassan NN/1951 court clerk
(10) LT. Commander O.A. Adeaga NN/1974 provost officer
(11) Sub lieutenant S.O. Bada NN/2985 liaison officer
On the 18-1-2011 the appellant was arraigned before the General Martial hereinafter referred to as (“the court”) on an initial one count charge which reads thus:-
“CHARGE SHEET
STATEMENT OF OFFENCE
Desertion Contrary to Section 60, Armed Forces Act Cap A20, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
That you Cdr. Yakubu Kudambo NN/0808 presently serving as duties with Flag Officer Commanding, Naval Training Command, but formerly of Naval Headquarters Abuja, being a person subject to service law, did desert the service of the Nigerian Navy on or about the 19 March, 2004 at Abuja, where you were on active service and thereby contravened Section 60 of the Armed Forces Act CAP A20, laws of the federation of Nigeria, 2004.
SGD
JB Oladimeji
Rear Admiral
Flag Officer Commanding
Naval Training Command”
The charge was later amended to a three court charge which reads as follows:-
“AMENDED CHARGE SHEET
The accused, Cdr Yakubu Kudambo NN/0808 of Naval Training Command a person subject to service law by virtue of the Armed Forces Act A20 LFN 2004 and at the time of the offence specified in the charge sheet were committed still subject to the Act is hereby as follows:-
COUNT ONE
STATEMENT OF THE OFFENCE
Absent Without Leave Contrary to Section 59 Armed Forces Act A20 Laws of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
That you Cdr Yakubu Kudambo NN/0808 of Naval Training Command did absent yourself without leave from Nigerian Navy on or about 19 March 2004 to about 8 April 2010. This being offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by the Act.
COUNT TWO
STATEMENT OF THE OFFENCE
Escape from Custody contrary to Section 87, Armed Forces Act CAP A20 laws of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
That you Cdr Yakubu Kudambo NN/0808 of Naval Training Command did on or about 19 March 2004 escaped from the custody of State Security Service, Abuja where you were detained for investigation. This being an offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by the Act.
COUNT THREE
STATEMFNT OF OFFENCE
Fraudulent Misapplication of Service Property Contrary to Section 66, AFA, Cap A20 LFN 2004.
PARTICULARS OF OFFENCE
That you Cdr Yakubu Kukdambo of Naval Training Command, on or about the year 2003, did fraudulently misapplied service property, namely 2189 Nigerian Navy Recruitment Forms Batch 13 NNBTS, which you fail to remit the proceeds from the sale of the said forms amounting to about Four Hundred and Five Thousand Naira (N405,000.00) to Nigerian Navy without any reasonable explanation. This being an offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by this Act.
SGD
N. AHMED
Capt
Prosecution”
The count 3 in the charge sheet was eventually dropped and struck out before the conclusion of the trial.
The court sat from the 18-1-2011 to 14-7-2011 in 18 sessions. At the trial the prosecution called four witnesses and tendered three Exhibits, i.e. (Exhibits A, D and E). The defence had only the appellant to testify and tendered seven Exhibits to wit; (Exhibits B, C, F, G, H, I and J)
At the conclusion of the trial, both the prosecution and the defence presented their closing addresses before the judge Advocate, summed up issues for the court which thereafter upon the consideration of the evidence both oral and documentary returned a verdict of ‘guilty’ on the two counts and sentenced him as follows:-
(a) Two years imprisonment for the first charge
(b) Dismissal from service of the NN for the second charge
The said findings and sentences of the court are stated to be subject to confirmation by the appropriate authority.
Apparently aggrieved with the said decision the appellant filed a notice of appeal containing two grounds in this court. It is dated 16-1-2013 and filed on 25-1-2013.
Briefs of argument were subsequently filed and exchanged. The appellant’s brief of argument settled by Baba-Panya Musa is dated 21-3-2013 and filed on 4-4-13. That of the Respondent dated and filed on 3-10-2013 but deemed properly filed and served on 1-11-13 was settled by Toyin Bashorun (ms) and Mallam J.A. Adamu. At the hearing of the appeal on the 23-1-14 the parties duly adopted and relied on their respective briefs of argument.
Four issues were formulated for determination in the appellant’s brief of argument as follows:-
(1) Whether the G.C.M. was clothed with the requisite jurisdiction as per its composition and competency of the amended 3 counts charge. (GROUND ONE)
(2) Whether ex facie the amended charge, the 3 counts offences were statute barred. (GROUND ONE)
(3) Whether or not the trial of the accused/appellant on count 1 amounted to “double jeopardy” and a denial of the defence of autrefois convict. (GROUND ONE AND TWO)
(4) Whether the findings of the GCM were perverse and had occasioned a miscarriage of justice.
The Respondent in its own brief of argument adopted the four issues as formulated in the appellants brief.
I will therefore adopt the said four issues in the determination of this appeal.
ISSUE ONE
Herein, learned counsel for the appellant referred to Section 133 of the Armed Forces Act particularly subsection 3(b) which states thus:-
“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 rank but not below the rank and seniority of the accused.”
He pointed to the fact that the operative words “rank and seniority” are used conjunctively and not disjunctively and that the canon of interpretation of statutes demands the reading of the provisions in its plain, ordinary and grammatical meaning. See AWO VS SHAGARI (1979) 6- 9 SC 51.
Learned counsel submitted that the other four members of the Rank of Captain, though wearing a rank higher than that of the appellant who is a commander, they are all the same, not his seniors as to qualify them to sit in judgment over him, in which case only the President of the court martial who as a commodore was of commensurate rank and seniority with the appellant.
He added that the appellant has never lost his seniority and indeed since 2004 he has not been presented to the Promotion Board, so all things being equal he should be of the same rank with a commodore at the time of his trial. That being the case, the convening authority should have constituted the General court martial with officers of a minimum rank and seniority of commodore like the president. Consequently, he says, the General Court Martial was not competent and as such lack the jurisdiction to try the appellant. He relied on the case of AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 or (2011) 7 NWLR (PT.1236) and THE STATE VS OLATUNJI (2003) 14 NWLR (PT.839).
On the competence of the amended three count charge upon which the plea was taken and the entire trial conducted on the appellant, learned counsel submitted that the amended charge having been unilaterally drafted and presented to the court by the prosecution before the appellant could take his plea on the original single charge of “desertion” as contained in both the circumstantial letter and convening order is incompetent and irregular because the prosecuting counsel, Captain N Ahmed was not competent to amend the charge or alter the convening order not being the convening authority who originally signed the single charge of desertion.
Learned counsel referred to Section 126 and 128 of the Armed Forces Act which deals with handling of charges against officers and who is an appropriate superior authority respectively. He noted that from the reading of the two Sections it becomes clear that the framing of charges against an officer is the responsibility of the commanding officer of the appellant, or by an officer of the Rank or higher rank of Brigadier or corresponding rank or a directed person of the rank of an officer having command over the accused. He contended that it was nowhere mentioned that the handling of charges against officers can be done by a prosecutor. Therefore, if there was any need to change or alter or amend or substitute or redraft the charge before the appellant was arraigned for the initial one count charge of desertion, then it would have been the flag officer commanding (NAVTRAC) Rear admiral J.B. Oladimeji who issued the convening order and signed the original charge.
Learned counsel also argued that court’s or the prosecution’s power to amend a charge could only arise when and after the original charge had been duly taken cognizance of and a proper plea taken by the accused, otherwise it will be premature and tantamount to amending the convening order which neither the court nor the prosecution has the authority to do.
He further posited that there is a distinction between a military court martial and the Regular courts or tribunals where the prosecution has the authority to withdraw, replace, or substitute an initial charge with a fresh one and depending on the circumstances of each case this can be done before or at the point of arraignment or after arraignment in which case the leave of the court will be sought and even the court can suo motu do so, but in the court martial, its competence and jurisdiction is determined by or stems from the convening order. See LT. ANTHONY BAKOSHI VS CHIEF OF NAVAL STAFF (2004) 15 NWLR (PT 896) 268.
Replying on this issue, learned counsel for the respondent referred to Section 133(3)(b) of the armed Forces Act CAP A20 Vol. 1 Laws of the Federation of Nigeria 2004 to acknowledge the fact that where an officer is to be tried by the General court martial, the president of the court must be above or of the same rank with the accused officer and other members of the court martial. He added that the military authority is imbued with the tradition of subordination to superior authority hence the incorporation of the practice of rank and seniority into the Armed Forces Act. Therefore he argues, it is a fact that a junior officer cannot sit in judgment over a senior officer.
Learned counsel contended that the appellant misinterpreted the provisions of Section 133(3)(b) to mean that the determination of rank and seniority depends on the length of service or the date of joining service rather than by way of rank. Reference was made to the case of AGBITI VS NIGERIAN NAVY supra to argue that where two persons are of the same rank the first in time becomes the senior.
He then submitted that as at the time of the trial of the appellant, he was of the rank of a “commander” in the Nigerian Navy while the other members of the court martial were of the Rank of Captain except the president who was a commodore and by the hierarchy of ranks in the Navy, the rank of a Captain is higher and superior to that of a commander. Therefore he says, the General court martial was clothed with the requisite jurisdiction and competence to try the appellant.
On the proper authority to amend or draft a charge, learned counsel submitted that the appellant’s counsel misconstrued Section 126 of the Armed Forces Act because it is not relevant to this case while Section 128 is a definition Section.
He argued further that a charge can be amended at any stage of the proceedings before judgment by virtue of Section 162 and 163 of the Criminal Procedure Act and Sections 206 and 208 of the Criminal Procedure code as well as the BR II Manual of Naval Law Chapter 2012. Reference was also made to the case of DOMINIC PRINGENT & ANOR VS THE STATE (2002) 12 SC (PT 1) 137 at 145 and UGURU VS THE STATE (2002) 4 SC (PT 11) 13 and AGBITI VS NIGERIAN NAVY (SUPRA), to support the stance that amendment or substitution of charges can be made in a court martial just like in regular courts because the Rules of evidence and statutory criminal law shall be followed in the prosecution of cases in the court martial and this includes the Criminal Procedure Act and Criminal Procedure Code.
Now, the appellant is of the Rank of Commander in the Nigerian Navy. The President of the GCM is of the Rank of Commodore while the other members are of the Rank of Captain. By the hierarchy of Rank and Seniority in the Nigerian Navy a commodore is higher than a captain while a captain is higher to a commander. In other words, upon promotion, after satisfying the necessary requirements, including passing the promotion interview, an officer of, for example, the Rank of Commander shall be promoted to the next superior Rank of a captain. It is from this rank of captain that he eventually moves to the rank of commodore and up to the other higher ranks.
The contention of the appellant herein, is that the other four members of the GCM who though are of the rank of captain, they are however not his seniors as to qualify them to sit in judgment over him because he is their senior by year of enlistment or better still commissioning into the Nigerian Navy. Put differently, having been commissioned as an officer into the Nigerian Navy before the four members, they cannot take seniority over him even though they are wearing the higher rank of captain. This argument is hinged on the provisions of Section 133(3)(b) of the Armed Forces Act which reads thus:-
133 (3)(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 rank but not below the rank and seniority of the accused.”
As far as the appellant is concerned, the words ‘Rank’ And Seniority shall be read conjunctively and not disjunctively. If the makers of the law wanted it to be ‘rank and seniority on rank, they would have stated so clearly.
Unfortunately, I cannot see my way through to the plausibility of this argument, given the fact that the provisions of Section 133 (3)(b) is very clear and unambiguous and thus devoid of the necessity for any double edged interpretation.
My own humble understanding of the words ‘rank’ and ‘seniority’ as used in the said subsection is that the officer concerned shall be not only of the same rank with the accused but they must have been promoted to the said rank the same time with effect from the same date.
This, to my mind is an elementary principle that operates even in the civil service and even the teaching profession. It equally has more force in most other professions including the legal, medical, engineering and clergy. I need add here that emphasis must be on Rank before Seniority. Thus if we are to go by the appellant’s analogy or logic, it means that an officer who remains in the Rank of a commander for one reason or the other including disciplinary measures or failure to pass the promotion interview shall continue to be senior to other lucky ones who attained higher ranks even up to a Vice Admiral simply because he joined the service or was commissioned before them. Reference was made to the case of AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 and THE STATE VS. OLATUNJI (2003) 14 NWLR (PT 839) 138.
In AGBITI’s case one of the appellant’s grouse was that two members of the panel, namely, major General Akpa and Airvice Marshal Odesola were his junior in rank and seniority even though by only three days. The General Court Marshal in that case considered the objection but overruled the appellant’s objection on the ground that it was just a mere technicality. The Supreme Court therein held that any Court Marshal which is not convened as required by the provisions of the Armed Forces Act is just like a Court or Tribunal which is not properly constituted in line with the decision in MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.
At page 49 the apex court held per Rhodes-Vivour JSC that:-
“The law says that the president and members of the court martial shall not be junior to the accused appellant. In this case, two members of the court martial are junior to the accused/appellant. To my mind once there is a defect in competence the entire proceedings are a nullity. If the law states what is required for the court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act, the trial ought to be nullified.”
As per the proper application of Section 133 (3) (B) of the Armed Forces Act, their Lordships per Mahmud Mohammed JSC held thus:-
“It is very clear from the provisions of subsection 3(b) above that the constitution of the General Court Martial to try the appellant shall not contain or include any officer who is junior in rank in terms of seniority in the armed forces to the appellant. Therefore once it is established that one or more of the members of the panel of the General Court Martial to try on officer in the Armed Forces for any offence is or are junior in rank and seniority to the officer to face trial before the panel of the General Court Martial the panel becomes improperly constituted and thereby deprived of the jurisdiction to try the officer for any offence under the Armed Forces Act.” (Underlining for emphasis)”
I went into details to bring out the clear difference between Agbiti’s case and this one under consideration. While in Agbiti’s case the officers concerned were of the same rank but Agbiti was senior to them by just three days, in the instant case, there is a world of difference between the appellants rank and that of the four officers who are members of the panel. While the appellant is a commander (a lower rank) the panel members are of the Rank of Captain, a clear and indisputably senior rank to that of a commander.
In the circumstance it is my view that there is no breach of the provisions of Section 133(3)(b) of the Armed Forces Act with regard to the seniority and rank of the members of the panel of the General Court Martial as it affect the trial of the appellant. In other words, the panel was properly constituted in accordance with the aforementioned Act.
On the contention that the act of the prosecution in amending the charge sheet to read the three counts as against the one count charge of desertion contained in the convening order and signed by the convening authority renders it improper and incompetent. Learned counsel for the appellant had placed reliance on Section 126 and 128 of the Armed Forces Act as well as the case of BAKOSHI VS. CHIEF OF NAVAL STAFF (2004) 15 NWLR (PT 896) 268.
Now the said sections 126 and 128 are herein below reproduced:-
Section 126:- “(1) Whether prejudice to the provisions of Part xiii of this act, a commanding officer shall, if he cannot adequately deal with a charge, and unless he has dismissed the charge, submit it in the prescribed manner to a higher authority who shall thereupon determine how the charge is to be proceeded with in accordance with subsection (2) of this section.
(2) The higher authority may refer the charge to the appropriate superior authority or take the prescribed steps with a view to the charge being tried by a court martial.
(3) Where the charge is referred to the appropriate authority, that authority shall investigate the charge in the prescribed manner and determine whether the accused is guilty of the charge and accordingly dismiss the charge or record a finding of guilty.
(4) If in the course of investigating the charge the appropriate authority determines that it is desirable that the charge should be tried by a court martial the prescribed steps shall be taken with a view to its being so tried.
(5) If the appropriate superior authority records a finding of guilty, it may award punishment as provided under part xiii of this Act.
Section 128:- (1) The following persons may act as appropriate superior authority in relation to a person charged with an offence, that is:-
(a) the commanding officer
(b) any officer of the rank of Brigadier or a above or officer of corresponding rank or those directed to so act under whose command the person is for the time being.
(2) The President may make rules for the purpose of this section and those rules may confer on the appropriate superior authority power to delegate his functions in such cases and to such extent as may be specified in the rules, to the officers of a class so specified.”
A combined reading of the two Sections show that the appropriate superior authority in this case who is the person of Rear Admiral J. B. Oladimeji, Flag Commanding (NAVTRAC) duly found that it was desirable that the charge against the appellant should be tried by a Court Martial, in compliance with Section 126(4) of the Act. Thereafter he issued a convening order for the General Court Martial as well as signed the charge sheet containing a single count of desertion against the appellant.
Section 126 confers power on the appropriate superior to either decide the fate of an accused officer by way of dismissing the charge against him or find him guilty and punish him accordingly under Part XIII of the Act, or in the alternative decide that the charge should be tried by a Court Martial.
My own understanding of the provisions of Section 126 of the Act is that it confers on the appropriate Superior authority the absolute power to determine the charge with which an offending officer shall tried by a Court Martial.
The convening order made pursuant to the Armed Forces Act is found at page 4 to 7 of the Record of Appeal.
Paragraph 1 of the said convening order dated 13th December 2010 reads as follows:-
“In pursuance of the powers conferred on me vide References A and B. I Rear Admiral James Bamidele Oladimeji NN/0620 DSS PSCT Mni, Bsc Eng. Flag Officer Commanding Naval Training Command, hereby convene a general Court Martial as constituted below to try Cdr Y. Kudambo NN/0808 of the Nigerian Navy for offence contained in the charge sheet attached.” (Underling for emphasis).
The charge sheet referred in the convening order and duly signed by the said Rear Admiral Oladimeji is at page 3 of the supplementary record and it reads thus:
CHARGE SHEET
STATEMENT OF OFFENCE
Desertion Contrary to Section 60, Armed Forces Act Cap A20, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
That you Cdr, Yakubu Kudambo NN/0808 presently serving as duties with Flag Officer Commanding, Naval Tanning Command, but formerly of Naval Headquarters Abuja, being a person subject to service law, did desert the service of the Nigeria Navy, on or about the 19 March, 2004 of Abuja, where you were on active service and thereby contravened Section 60 of the Armed Forces Act CAP A20, laws of the federation of Nigeria, 2004.
Signed
JB Oladimeji
Rear Admiral
Flag Officer Commanding
Naval Training Command
The order of the appropriate Superior authority is for the General Court Martial to try the appellant for the offence in the attached charge sheet as shown above and the said charge sheet contains one count of desertion. However at the trial of the appellant before the General Court Martial an amended charge signed by one Captain N. Ahmed was introduced. It reads as follows:
AMENDED CHARGE SHEET
The accused, Cdr Yakubu Kudambo NN/0808 of Naval Training Command a person subject to service law of by virtue of the Armed Forces Act A20 LFN 2004 and at the time of the offence specified in the charge .sheet were committed still subject to the Act is hereby as follows:
COUNT ONE
STATEMENT OF THE OFFENCE
Absent Without Leave Contrary to Section 59 Armed Forces Act A20 Lows of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
That you Cdr Yakubu Kudambo NN/0808 of Naval Training Command did absent yourself without leave from Nigeria Navy on or about 19 March 2004 to about 8 April 2010. This being offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by the Act.
COUNT TWO
STATEMENT OF THE OFFENCE
Escape from Custody contrary to Section 87, Armed Forces Act CAP A20 laws of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
That you, Cdr Yakubu Kudambo NN/0808 of Naval Training Command did on or about 19 March escaped from the custody of State Security service, Abuja where you were detained for investigation. This being an offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by the Act.
COUNT THREE
STATEMFNT OF OFFENCE
Fraudulent Misapplication of Service Property Contrary to Section 66, AFA, Cap A20 LFN 2004.
PARTICULARS OF OFFENCE
That you Cdr Yakubu Kudambo of Naval Training Command, on or about the year 2003, did fraudulent misapplied service property, namely 2189 Nigerian Navy Recruitment Forms Batch 13 NNBTS, which you fail to remit the proceeds from the sale of the said forms amounting to about Four Hundred and Five Thousand Naira (N405,000:00) to Nigerian Navy without any reasonable explanation. This being an offence and punishable on conviction by a Court Martial to a term of imprisonment for 2 years or any less punishment provided by this Act.
Signed
NAHMED
Capt.
Prosecution
The said amended charge sheet was not signed by the convening officer neither was it shown that the convening order was amended to reflect the new charges or that at least the amendment was done with the express approval of the convening officer statutorily empowered to determine the charge for which an accused officer shall be tried before a court martial.
Learned counsel for the Respondent had referred this court to the provisions of Sections 162 and 163 of the Criminal Procedure Act and Sections 206 and 208 of the Criminal Procedure Code and cited in support the case of DOMINIC PRINCENT & ANOR VS. THE STATE (2002) 12 SC (PT 1) 137 at 145 and UGURU VS. THE STATE 2002 4 SC (PT II) 13 to justify the contention that a charge can be amended at any stage of the proceeding before judgment is given. This is indeed trite and incontestable even in a trial before a court martial as in this case, but it must be done in accordance with the relevant statutory provision as presented by Section 126 of the Armed Force Act which requires that where an appropriate superior authority in the military determines that it is desirable that a charge shall be tried by a Court Martial, the prescribed steps shall be taken with a view to its being so tried. Hence the convening officer signs the charge for which an officer is to be tried. There is a contrast here with what obtains in the regular courts where there is a standing and implied mandate enabling any legal officer to sign a charge sheet as well as amend it when necessary. What is more, it is rather curious that in utter reverence to the relevant statutory provision, Rear Admiral J.B. Oladimeji who was the convening officer had cause to amend the original convening order when there was need to replace members of the panel who could not for one reason or the other serve in the Court Martial. The said amended convening order reads thus:-
Telegram: FOC NAVTRAC-APAPA HEADQUATERS
Telephone: 5872843 NAVAL TRAINING COMMAND
HARBOUR ROAD
APAPA – LAGOS
HQNTC: 001/585/VOL.V/52
See Distribution
AMENDMENT TO CONVENING ORDER FOR A GENERAL COURT MARTIAL TO TRY CDR Y KUDAMBO NN/0808
Reference
A. HQNTC: 001/585/VOL.V/29 dated 13 Dec 10
1. Reference A is hereby amended as follows:
a. Substitute Paragraph 2 Serial J with Lt Cdr OA Adeaga NN/1974 as Provost of court.
b. SLt P Umaru NN/3055 and SLt RO Iyinbo NN/3229 appointed Assistant prosecutors.
2. Treat accordingly.
Signed
JB OLADIMEJI
Rear Admiral
Flag Officer Commanding
Now the question is, if the replacement of a member of the panel and addition of two assistant prosecutions could warrant the amendment of the convening order by the convening officer, why should the radical amendment of a charge originally signed by him and forms part of the convening order not warrant the same amendment given the fact that this was done before the arraignment of the appellant in the General Court Martial.
To my mind therefore, the amendment and signing of the charge sheet by Captain Ahmed, the prosecuting counsel, even before the arraignment of the appellant and without any proof of delegation of such power to him by the convening officer is an aberration and offends the provisions of Section 126(4) of the Armed Forces Act.
In this regard I find refuge in the decision of the Apex Court AGBITI VS. CHIEF OF NAVAL STAFF Supra where their Lordships emphasized the need to strictly comply with the necessary statutory provisions. They held per Rhodes-Vivour JSC at page 49 as follows:
“If the law states what is required for the court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act the trial ought to be nullified.”
In the instant case there is an infraction of the law which requires the appropriate superior authority to determine the charge to be tried by a court martial. In which case the trial based on the charge altered and signed by an officer who is not the appropriate superior authority render it an nullity.
Having declared the trial based on a tainted or unrecognized charge a nullity being a threshold issue, it makes the consideration of the other issues raised for determination an exercise in futility.
Where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all other issues formulated by the parties see ANYADUBA VS. NIGERIAN RENOUNED TRADING CO. LTD (1992) 5 NWLR (PT 243) 535; OKONJI VS NJOKANMA (1991) 7 NWLR (PT 202) 131 and EBBA VS OGODO (1984) 1 SCNLR 372.
It is unfortunate that the matter ended this way considering the pedantic nature of our judicial process but what is worth doing at all is worth doing well.
This appeal has merit based on the conclusion reached above and it is hereby allowed. The verdict of the General Court Martial is hereby set aside for being a nullity. This is however without prejudice to the appellant being re-arraigned for a proper trial before another Court Martial if the Respondent so wish.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the succinct judgment prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I agree.
The case against the appellant is substantial and strikes at the root of military discipline, therefore the error committed by the Court Martial in replacing the original charge sheet submitted to it by the convening order with a new charge sheet without recourse to the convening authority does not merit the acquittal and discharge of the appellant who was found to have been on ‘Awol’ for over six years.
The appeal is reluctantly allowed by me. The amended charge sheet is declared a nullity. The respondent is at liberty to re-arraign the appellant for proper trial before another Court Martial on the original charge sheet or on a fresh charge sheet duly signed by the convening authority. Both learned counsel Mr. Baba-Panya Musa for the appellant and Ms. Bashorun for the respondent are commended for the industry they put into this relatively uncharted terrain of Military Law pertaining to the appeal.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother OSEJI JCA.
My lord dealt with the issues in this appeal thoroughly and well, I have nothing more to add. I adopt his reasoning and conclusion in the lead judgment as mine
The appeal is also allowed by me, and the charge against the appellant is declared a nullity which entitles appellant to discharge. Appellant’s success is without prejudice to facing a fresh trial before another properly constituted court martial if the respondent so decides.
>
Appearances
Baba-Panya Musa and K.E.F. NtongFor Appellant
AND
T. Bashorun(Ms) with J.K. Adamu and O.C. MbadiweFor Respondent
