MAHE v. NIGERIAN ARMY (2020)

MAHE v. NIGERIAN ARMY

(2020)LCN/14650(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, October 09, 2020

CA/K/54/C/2014

RATIO

JURISDICTION: MEANING OF JURISDICTION

The term “Jurisdiction” means the authority which a Court has to decide matters that are litigated upon before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the Court is controlled, circumscribed by the Statute creating the Court itself. OR it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the Suit. See: National Bank (Nig) Ltd &Anor. v. John Akinkunmi Shoyoye & Anors (1977) 5 SC 181, 190 -191 where the Supreme Court adopted the definition of the term “Jurisdiction” as contained in Vol. 10 Halsbury’s Laws of England, 4th ed. Paragraph 755 page 323. It follows therefore that questions or issues, related to or concerning the exercise of Jurisdiction by the Courts, are questions which go the basics, the very foundation of the case itself hence the law allows such questions to be raised, taken and argued howsoever and at any stage of the proceedings. It can be taken even for the first time on appeal, and it does not matter whether leave of Court was first sought to argue such issue or question. See: Bronik Motors Ltd v. Wema Bank Nig. Ltd. (1983) 6 SC 158, 359; Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 597. This thus, constitutes an exception to the rule or principle that fresh issues or points cannot be taken at the appeal stage without a prior leave being first sought and obtained. An issue is of the “fresh” type when the same was not canvassed at the lower Court and pronounced upon there. See FBN Plc v. ACB Ltd. (2006) 1 NWLR (Pt. 962) 438, 461 – 462. Fresh issue basically, must be on point of law and can only be raised with the leave of Court. See: Kasumu v. Balogun & Ors (2010) LPELR – 439C (CA). PER HUSSAINI, J.C.A.
JUDGMENT: PROCEDURE FOR SIGNING OF JUDGMENT OF THE GENERAL COURT MARTIAL

It appears to me that the Respondent and their counsel have missed the point. The issue here is about the non-signing of the Judgment of the General Court Martial on the date and time that judgment was delivered. Sections 141 and 148 of the Armed Forces Act, did not provide anything to the contrary. It did not say that the judgment of the GCM should only be signed after the compilation of the records of proceedings or after its confirmation by the Nigerian Army Council. The Rules of Procedure are clear on this and this is Rule 76(3) of the Rules of Procedure (Army) 1972. It provides thus:
“Immediately after the conclusion of the trial, the President and Judge advocate (if any) shall date and sign the record of the Proceedings. The President or the Judge Advocate shall then forward it as directed in the Convening Order.”
It is thus mandatory and Obligatory of the President, GCM and the Judge Advocate to date and sign the record of Proceedings immediately after the conclusion of trial. The provision is loud and clear, in a commanding language and free from ambiguities. Failure to abide by those words of command and act on them, is akin to a breach of the Rules.
In Lt. Yakubu v. Chief of Naval Staff (supra), this Court held:
“Signing and dating of a judgment of Court Martial is a mandatory statutory requirement and failure of the Court Martial to sign and date the Judgment at the time of pronouncing it the verdict is void and thus rendered the entire exercise a nullity.” PER HUSSAINI, J.C.A.
JUDGMENT: DUTY OF AN APPELLANT ASSERTING THE JUDGMENT AGAINST WAS NOT SIGNED AND DATED AT THE TIME PRONOUNCED

In this appeal, it is the Appellant who assert that the judgment appealed against was not signed and dated at the time it was pronounced.

He needed to satisfy us that the said judgment was indeed not signed and dated at the time of pronouncement.
What he needs to establish is (1) the date the judgment appealed against was pronounced (2) that the judgment so pronounced on the given date was not signed. PER HUSSAINI, J.C.A.
RECORD OF PROCEEDINGS: BINDINGNESS OF RECORD OF PROCEEDINGS ON COURT

I am bound by the record of proceedings and cannot go outside it. See: Odofin v. Agu (1992) 3 NWLR (Pt. 229) 315. PER HUSSAINI, J.C.A.

GENERAL COURT MARTIAL: REQUIREMENT OF THE SIGNATURE OF THE COMMANDING OFFICER ON THE CHARGE SHEET

This requirement of the signature of the Commanding Officer on the charge sheet as provided for by the Rules (Manual of Military Law) has been given judicial endorsement when the Apex Court in the case of Agbiti v. Nigeria Army (2011) 13 WRN 1, 49 held that there is an infraction of the law which requires the appropriate Superior Officer or authority to determine the charge to be tried by a Court martial but the charge was signed by an officer who is not the appropriate Superior authority to render the process or charge a nullity. This Court, speaking in similar fashion held in the case of Kudambo v. Nigerian Navy (2014) LPELR-22624, as follows:
“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 Forces Act which requires that where an appropriate superior authority in the military determines that is desirable that a charge sheet 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 sign 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.” PER HUSSAINI, J.C.A.

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

I. R. MAHE APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the General Court Martial holden at 1 Division Nigerian Army Officers Mess, Kaduna by which the General Court Martial (GCM) found the accused now the Appellant guilty of the offence of Impersonation under Section 97(b) of the Armed Forces Act Cap A 20, LFN, 2004 and thus sentenced him to a term of imprisonment of two (2) years, without option of fine.

Dissatisfied with the judgment and order of the GCM, the Appellant appealed to this Court vide the Notice of Appeal filed on the 12th June, 2014 with the leave of this Court granted on the 4th June, 2014.

By the amended Notice of Appeal filed on the 11th July, 2017, the Appellant has appealed to this Court on Four (4) grounds. The grounds of appeal, shorn of the particulars, are reproduced as below:-
GROUND 1
The Honourable General Court Martial erred in Law when it failed to sign the record of its proceedings/Judgment immediately after the conclusion of trail on 31st January, 2013, as mandatorily required by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

and Rule 76(3) of the Rules of procedure (Army) 1972.
GROUND 2
The Honourable General Court Martial erred in Law when it assumed jurisdiction tried and convicted the Appellant on the charge which was not signed by the Appellant’s Commanding Officer as required by Paragraph 39(C) and 43 of the Manual of Military Law (MML) applicable to the General Court Martial.
GROUND 3
The Honourable General Court Martial in erred in Law when it assumed jurisdiction and tried the accused now the Appellant for an offence of impersonation after the lapse of period of limitation of time.
GROUND 4
The Honourable Court Martial erred in Law when it held that the offence of impersonation is a continued offence and cannot be statute barred.

From the four (4) grounds of appeal, the Appellant distilled four (4) issues in the amended Appellant’s Brief of argument filed on the 11th July, 2017.

In the like manner, the Respondent filed their Respondent’s Brief of argument on the 20th September, 2019. A further deeming order was entered on the 24th June, 2020 indicating that the said brief of argument was properly filed and

served on that date. In the said Respondent’s brief, is incorporated into it, the Notice of Preliminary objection along with arguments canvassed thereto in support of the Preliminary Objection.

There is also the Appellant’s Reply brief of argument filed on the 4/5/2020 but same was deemed properly filed and served on the 24/6/2020. The appeal came up for hearing on 24/6/2020 and learned counsel on both sides adopted their respective briefs of argument.

The Appellant was arraigned before the General Court Martial on a single count-charge of the offence of impersonation punishable under Section 97(b) of the Armed Forces Act, LFN, 2004. The charge reads thus:
“Statement of offence:
Impersonation punishable under Section 97(b) of the Armed Forces Act, Cap A 20, Laws of the Federation of Nigeria, 2004.
Particulars of offence:
In that you whose name was Danladi Hussain while in service as an enlisted man in the Nigerian Army with intent to defraud the Nigerian Army, from 18th March 2008 till date falsely represent Yourself to be one Ibrahim Rabiu Mahe, a graduate of Kaduna Polytechnic.”

He entered a plea of “not guilty” to the charge. The Appellant through his counsel, in the course of trial raised objections challenging the jurisdiction of the General Court Martial (GCM) to try him but those objections were over – ruled and trial proceeded accordingly to conclusion wherein the Appellant was found guilty as charged, convicted and sentenced to a term of imprisonment of two (2) years. This Judgment of the General Court Martial, gave rise to this appeal.

I will first address issues surrounding the Preliminary Objection taken by the Respondent on account of the appeal being incompetent. This objection is premised on five (5) grounds, namely:
1. The two grounds of appeal as contained in the Appellant’s amended notice of appeal are incompetent because they raised fresh issues which were not canvassed at the lower Court.
2. There was no leave granted the Appellant to argue and raise fresh issue before this Honourable Court.
3. The leave granted the Appellant by this Honourable Court was to amend the Notice of Appeal dated 05/06/2014 by inclusion of two additional grounds of appeal.
4. The two grounds of appeal in the

Appellant’s appeal are issues of mixed facts and law and as such, the Appellant ought to obtain leave specifically to argue the issue of mixed facts and law firstly before arguing same in accordance with Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. The entire grounds of appeal are incompetent and as such cannot be considered by this Honourable Court.

In the eye of the Respondent and their counsel, Grounds 1 and 2 of the amended Notice of Appeal raise fresh issue, and in the absence of a prior leave being sought, to argue fresh points before this Court, the said grounds are not competent. We were urged to strike out same and discountenance Appellant’s issue No. 1. Relative to Ground No. 2, we were urged to hold that same raises issues of Mixed law and facts, and there being no leave obtained to appeal against the Interlocutory decision of the General Court Martial to try the Appellant on the charge sheet signed by an officer other than the Commanding officer, leave ought to have been sought to appeal. It was argued that the issue of the signing of the charge by an officer other than the,

Appellant’s Commanding Officer is an issue of fact hence Ground 2 of the amended Notice of Appeal is a ground of mixed law and fact which can only be raised and argued upon leave duly sought and granted. The learned counsel for the Respondent referred us to a number of decided cases to urge us to strike out Ground 2 of the amended Notice of Appeal and discountenance issue 2 derived from it. We were urged to uphold the Preliminary Objection and dismiss this appeal.

The response to the Preliminary Objection is contained in the Appellant’s Reply brief filed or deemed filed on the 24/6/2020 wherein it is argued per contra that the decision of the General Court Martial now being appealed against, being a final decision of that Court, leave to appeal against it was uncalled for, citing provisions of Section 241(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Secondly: That all the Grounds of appeal as contained in the amended Notice of Appeal were/are grounds of law and there being no ground of mixed law and fact, leave of this Court was not required of the Appellant to legitimize his appeal.

In reference to

the Grounds 1 and 2 of the amended Notice of appeal, relative to which the objection was taken, it is argued that the said two (2) Grounds raise issues as to the jurisdiction of the General Court Martial to entertain the matter. He argued that issues of jurisdiction can be raised at any time before an Appellate Court without leave. He argued that Grounds 1 and 2 do not raise fresh issues. We were urged to dismiss the Preliminary Objection.

The Preliminary Objection, primarily is against Grounds 1 and 2 of the amended Notice of April. At the risk of repetition, the said two (2) grounds read thus together with their particulars:
GROUND 1
The Honourable General Court Martial erred in Law when it failed to sign the record of its proceedings/Judgment immediately after the conclusion of trail on 31st January, 2013, as mandatorily required by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rule 76(3) of the Rules of Procedure (Army) 1972.
Particulars of Error
(a). Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandatorily requires every Court to sign or

authenticate its Judgment at the time of delivery of same.
(b). Rule 76(3) of the Rules of Procedure (Army) 1972 mandatorily requires the immediate signing of the record of proceedings and Judgment after the conclusion of trial of an accused person.
(c). The trial of the Appellant was conclude on 31st January, 2013 with the announcement of its conviction and sentence by the General Court Martial.
(d). The signing of the Judgment of the General Court Martial was not done until the 26th July, 2013, about 3 months after the conclusion of the trial of the Appellant.
(e). Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rule 76(3) of the Rules of Procedure (Army) 1972 is mandatorily and not prescriptive.
(f). The failure of the Honourable General Court Martial to comply with the mandatorily requirements of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rule 76(3) of the Rules of Procedure (Army) 1972 renders the entire proceedings of the General Court Martial a nullity.
GROUND 2
The Honourable General Court Martial erred in Law when it assumed

jurisdiction tried and convicted the Appellant on the charge which was not signed by the Appellant’s Commanding Officer as required by Paragraph 39(C) and 43 of the Manual of Military Law (MML) applicable to the General Court Martial.
Particulars of Error
(i). The Commanding Officer of the Appellant for the purpose of his trial before the General Court Martial was the General Officer Commanding, 1 Division Headquarters, Nigeria Army, Kaduna and not Col. COC. Ekulide who signed the charged on the 31/7/2012.“

As noted from the above Grounds, the appeal to my mind, seeks to impugn in its entirety the record of proceedings of the General Court Martial over the Court’s failure to observe certain constitutional and statutory provisions, as a result of which those proceedings stand vitiated, hence issue of the exercise of jurisdiction by the General Court Martial was brought to the fore, thereby.
The term “Jurisdiction” means the authority which a Court has to decide matters that are litigated upon before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the Court

is controlled, circumscribed by the Statute creating the Court itself. OR it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the Suit. See: National Bank (Nig) Ltd &Anor. v. John Akinkunmi Shoyoye & Anors (1977) 5 SC 181, 190 -191 where the Supreme Court adopted the definition of the term “Jurisdiction” as contained in Vol. 10 Halsbury’s Laws of England, 4th ed. Paragraph 755 page 323. It follows therefore that questions or issues, related to or concerning the exercise of Jurisdiction by the Courts, are questions which go the basics, the very foundation of the case itself hence the law allows such questions to be raised, taken and argued howsoever and at any stage of the proceedings. It can be taken even for the first time on appeal, and it does not matter whether leave of Court was first sought to argue such issue or question. See: Bronik Motors Ltd v. Wema Bank Nig. Ltd. (1983) 6 SC 158, 359; Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 597. This thus, constitutes an exception to the rule or principle that fresh issues or points cannot be taken at the

appeal stage without a prior leave being first sought and obtained. An issue is of the “fresh” type when the same was not canvassed at the lower Court and pronounced upon there. See FBN Plc v. ACB Ltd. (2006) 1 NWLR (Pt. 962) 438, 461 – 462. Fresh issue basically, must be on point of law and can only be raised with the leave of Court. See: Kasumu v. Balogun & Ors (2010) LPELR – 439C (CA).
Considering therefore that Grounds 1 and 2 as contained in the amended Notice of Appeal which border on Jurisdictional questions as aforesaid, the objections taken relative to the competence of those grounds, must per force, fail and same is dismissed.

I will now address the merits of this appeal. Learned counsel for the Appellant in his brief of argument has distilled four (4) issues for determinations viz:
1. “Whether the conviction of the Appellant can be set aside on the ground that the judgment was not signed immediately after delivery.
2. Whether the conviction of the Appellant is not a nullity as same was based on the charged sheet that was not signed by the Appellant’s commanding officer.
3. Whether the trial

General Court Martial had jurisdiction to try the Appellant after 3 years limitation of time, when the case became statute barred.
4. Whether the offence of impersonation is one of the exceptions provided under Section 169 of the Armed Forces Act A20 LFN 2004.”

In this appeal, the Respondent has presented three (3) issues for determination of Court thus:
(1) “Whether the finding/record of proceeding of the General Court Martial in this case signed and dated on the 26th day of July, 2013 by the President and Judge advocate is valid?
(2) Whether the trial of the accused/Appellant upon the charge sheet signed by Col. C.O.C Ekulide on behalf of the the General Officer Commanding 1 Division is capable of vitiating the trial of the accused person?
(3) Whether the General Court Martial has jurisdiction to try the accused as it did in this case.”

As can be seen from the two sets of issues formulated or identified as above by parties on both sides, the question of the exercise of jurisdiction by the general Court Martial is the dominant consideration in this appeal. It continues to hover around all the issues identified by the

parties in their briefs of argument. I shall however, abide by the four (4) issues proposed by the Appellant in his brief of argument.

Appellant’s issue No. 1 is similar to Respondent’s Issue No. 1. While issue Nos. 2 and 3 in the Appellant’s brief are similar to Respondents issue Nos 2 and 3.
ISSUE NO. 1
Whether the conviction of the Appellant can be set aside on the ground that the judgment was not signed immediately after delivery?

Arguing Issue No. 1, it was contended for the Appellant that the judgment of the General Court Marital delivered on the 31st January, 2013 was not signed immediately after delivery until on the 26th July, 201 and this, it was argued, is contrary to the provision of Rule 76(3) of the Rules of Procedure (Army) 1972.

It is argued for the Appellant that since the judgment of the General Court Marital was delivered on 31st January, 2013, conviction and sentencing of the Appellant began to run from that date, in reference to Section 157 of the Armed Forces Act, 2004 but failure of the President, General Court Martial and the Judge Advocate to sign the judgment on 31st January, 2019 rendered

the whole trial a nullity. We were referred to Section 294(1) of the 1999 Constitution. We were further referred to Rule of Procedure (Army) 1972, Section 296(1) of the Criminal Procedure Code, Section 245 of the Criminal Procedure Act, and Section 299 of the Administration of Criminal Justice of Lagos State on the need for a Court to sign and seal a Judgment at the time and date of delivery. We were further referred to the decision in Lt. Yakubu v. Chief of Naval Staff (2004) NWLR (Pt. 853) 4, 114-115; Capt. Ali Jubrin v. Nigeria Army (unreported) Appeal No. CA/K/130A/C/2015 delivered on 17th June, 2016. We were urged to resolve issue No. 1 in favour of the Appellant and allow this appeal.

On the side of the Respondent, it was argued on this issue (No. 1) that the judgment of the General Court Martial signed by the President and Judge Advocate is valid and in accordance with Section 141 and 148 of the Armed Forces Act. It was argued that the judgment of the General Court Martial unless and until it is confirmed by the confirming authority is not the judgment of the General Court Martial. On this, we were referred to the decision of the Supreme Court in Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338, 394.

The conviction and sentencing of the accused/Appellant, it is argued, was announced in the open Court and thereafter the record of proceedings were compiled and signed by the President and the Judge Advocate on the 26th July, 2013 in accordance with Section 148 of the Armed Forces Act.

It is argued that the conviction and sentencing of the Appellant only qualified as judgment of the General Court Martial on the 4th April, 2014, i.e the date the Judgment was confirmed by the Nigerian Army Counsel. We were urged to resolve issue 1 in favour of the Respondent.

RESOLUTION OF ISSUE NO. 1
It appears to me that the Respondent and their counsel have missed the point. The issue here is about the non-signing of the Judgment of the General Court Martial on the date and time that judgment was delivered. Sections 141 and 148 of the Armed Forces Act, did not provide anything to the contrary. It did not say that the judgment of the GCM should only be signed after the compilation of the records of proceedings or after its confirmation by the Nigerian Army Council. The Rules of Procedure are clear

on this and this is Rule 76(3) of the Rules of Procedure (Army) 1972. It provides thus:
“Immediately after the conclusion of the trial, the President and Judge advocate (if any) shall date and sign the record of the Proceedings. The President or the Judge Advocate shall then forward it as directed in the Convening Order.”
It is thus mandatory and Obligatory of the President, GCM and the Judge Advocate to date and sign the record of Proceedings immediately after the conclusion of trial. The provision is loud and clear, in a commanding language and free from ambiguities. Failure to abide by those words of command and act on them, is akin to a breach of the Rules.
In Lt. Yakubu v. Chief of Naval Staff (supra), this Court held:
“Signing and dating of a judgment of Court Martial is a mandatory statutory requirement and failure of the Court Martial to sign and date the Judgment at the time of pronouncing it the verdict is void and thus rendered the entire exercise a nullity.”
In this appeal, it is the Appellant who assert that the judgment appealed against was not signed and dated at the time it was pronounced.

He needed to satisfy us that the said judgment was indeed not signed and dated at the time of pronouncement.
What he needs to establish is (1) the date the judgment appealed against was pronounced (2) that the judgment so pronounced on the given date was not signed.
In his brief of argument, learned counsel for the Appellant has argued that the General Court Martial proceeded to pronounce its verdict after the sum-up by the Judge Advocate. He gave the date as the 31st January, 2013 when the sum-up and the verdict of guilt was pronounced on the Appellant.
I have looked through the Record of Proceedings starting from page 118 to page 132C but cannot find or ascertain from the record that the Judgment of the GCM was delivered on the 31st January, 2013. I am bound by the record of proceedings and cannot go outside it. See: Odofin v. Agu (1992) 3 NWLR (Pt. 229) 315. The judgment or verdict of the GCM is at pages 132-132C of the record. It is not so clearly or expressly so stated that the verdict of the GCM was given on the 31st January, 2013.
The need for proper heading of the proceedings of Court, stating the date the proceeding took place, the

composition of the members of the Court on each date of sitting, the appearances of parties and their counsel should not be taken with laxity. If there is anything wanting, relative to the proceedings of the GCM in the appeal before us, this is one of them. The names and composition of the Court, the date of sitting and parties and counsel in attendance should be repeated on every other date and reflected on the record on each occasion the Court reconvenes for business.
So, in the matter at hand, the Appellant needed to invite our attention to the record of proceedings, and in particular, the record showing that the verdict of the General Court Martial was delivered or pronounced on the 31st January, 2013. He who asserts must prove that which he assert. Sections 135-137 of the Evidence Act lay down the fundamentals of such proof. The burden in this case lies with the Appellant to satisfy us in this appeal that the verdict of the GCM was pronounced on the 31st January, 2013 and that the verdict was not signed upon pronouncement on the said date. See Osuji v. Ekeocha (2009) 52 WRN 1; Mini lodge Ltd v. Ngei (2010) 10 WRN 58; Bunge v. Gov. Rivers State

(2006) 6 SC 81. In the absence of any clear proof from the Appellant that the judgment appealed against indeed was delivered on 31st January, 2013, the presumption will be that the judgment was delivered on the date it was dated and signed and that is, on the 26th July, 2013.
There is a presumption of regularity here which I draw in favour of the Respondent relative to the judgment or verdict of the General Court Marital at pages 132-132C of the Record of Proceedings: The Maxim in law is Omnia praesummatur ease acta i.e all things are presumed to have been correctly done. See: Aliu Bello v. A. G. Oyo State (1986) 12 SC 1.
I therefore resolve issue No. 1 against the Appellant and in favour of the Respondent.

ISSUE NO. 2
Whether the conviction of the Appellant is not a nullity as same was based on the charge sheet that was not signed by the Appellant’s Commanding Officer.

Issue No. 2 raises a more fundamental and worrisome question compared to issue No. 1 discussed before. The question posed by Issue 2 is whether the accused/Appellant was properly arraigned before the GCM. Put differently was the trial of the accused/Appellant

properly ignited by the convening authority in line with due process and procedure of the General Court Martial? Hear what the parties and their counsel have to say on this point:-
Learned counsel for the Appellant in arguing this point referred us to the charge sheet contained at page 3 of the record of appeal, dated 31st July, 2012 and signed by Col. COC Ekulide for the General Officer Commanding. It is argued that Col. COC Ekulide was at the material time not the Commanding Officer of the Appellant.

In response to Paragraphs 39 and 43 of the Manual of Military Law, it was submitted that it is the Commanding Officer of the accused person that must sign the charge sheet and not any other person on his behalf. In reference to the charge sheet, it was argued that the same was signed by Col. COC Ekulide in a representative Capacity and not by the Commanding Officer of the Appellant hence the proceedings built on an invalid charge sheet is a nullity. We were referred to Agbiti v. Nigerian Navy (2011) 13 WRN 1, 49 (SC); we were urged to hold that the charge sheet not having been signed by the convening authority i.e the Commanding Officer in the person

of Maj. Gen. GA Wahab, the Charge Sheet was/is a nullity and the trial, conviction and sentence of the Appellant was also a nullity. We were urged to resolve Issue No. 2 in favour of the Appellant.

There is however a discordant view on this point as argued by learned counsel for the Respondent. We were first referred to Section. 286 of the Armed Forces Act, said to be the enactment which governs the signing/Execution of instruments in the Armed Forces. Learned Respondent’s Counsel submitted that by virtue of this provision, an officer of the Nigerian Army can act on behalf of the authorised Officer to sign an instrument. We were referred to the decision in Nigerian Airforce v. Obiosa (2003) 4 NWLR (Pt. 810) 233. Given the provision of Section 286 of the Armed Forces Act and the decision in Obiosa’s case (supra), it was argued that the signing of the Charge Sheet by Col. COC Ekulide on behalf of the Commanding Officer, was in order.

Learned Respondent’s Counsel in his further submission on this point argued that the Appellant/counsel was overruled at the trial Court martial on the same issue of the defective charge but that there was

no appeal against that ruling hence the trial proceeded to conclusion with accused/Appellant participating actively in the trial. Relying therefore on decisions in Magaji v. Nigeria Army (2008) 8 NWLR (Pt. 1089) 338, Okaroh v. State (1990) 1 NWLR (Pt. 128) 128, Agbo v. State (2006) 6 NWLR (Pt. 9771) 545, it submitted that it is now too late for the Appellant and his counsel to contend otherwise. We were urged to resolve this issue in favour of the Respondent and against the Appellant.

RESOLUTION OF ISSUE NO. 2
I have said before in this discourse that the question relating to the validity or otherwise of a charge in a charge sheet has direct relevance to the exercise of Jurisdiction by the Courts on that matter. Where therefore the charge in the charge sheet become an issue before the Court whether at trial or on appeal, the question whether the accused consented to the trial or participated in the trial, is to me inconsequential if the very foundation of the case or trial was faulty. See: Mcfoy v. UAC (1962) A. C 152; Madukolu v. Nkemdilim (1962) 1 SCNLR 341.
The Appellant was arraigned on a single count-charge for impersonation as per the charge

sheet at page 3A of the Record wherein one Col. COC Ekulife signed the instrument for the General Officer Commanding on the 31st July, 2012. It is thus beyond dispute that the Appellant was tried, convicted and sentenced based on the charge sheet signed by Col. COC Ekulide who was not the Commanding Officer.
Paragraph 43 of the Manual of Military Law provides as follows:-
“A CO having remanded the accused in accordance with R.P 13 will sign the Charge Sheet. Care must be taken to ensure that a person who signs the charge sheet is the CO of the accused at the date of signing: it must not be signed by another officer on his behalf.”
This requirement of the signature of the Commanding Officer on the charge sheet as provided for by the Rules (Manual of Military Law) has been given judicial endorsement when the Apex Court in the case of Agbiti v. Nigeria Army (2011) 13 WRN 1, 49 held that there is an infraction of the law which requires the appropriate Superior Officer or authority to determine the charge to be tried by a Court martial but the charge was signed by an officer who is not the appropriate Superior authority to render the

process or charge a nullity. This Court, speaking in similar fashion held in the case of Kudambo v. Nigerian Navy (2014) LPELR-22624, as follows:
“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 Forces Act which requires that where an appropriate superior authority in the military determines that is desirable that a charge sheet 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 sign 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.”
Paragraph 43 of the Manual of Military Law is an extant provision which prescribes, specifies, and directs how and who it is his duty to sign a charge or charge sheet, in this case, the Convening Officer. Anything outside that amounts to a breach of the Rules.
Section 286 of the Armed Forces, Act

cited by the Respondent’s counsel in his brief of argument and the decision in Nigerian Air Force v. Obiosa (supra) cannot avail them. This is so because Section 286 of the Armed Forces Act itself recognises the rules and regulation made under the Act which provide for the person whose duty it is to sign a charge sheet hence Section 286 cannot come into play where the Rules (Military Law Manual) at Paragraph 43 is still in existence and operational.
In the light of my discourse as above, I am of the firm view that the case against the Appellant was not properly initiated at the Trial General Court Martial in so far as the Charge Sheet was not signed by the Convening Officer: See Madukolu v. Nkemdilim (supra). The trial culminating in the conviction of the Appellant and his sentence to a term of imprisonment of two (2) years, is nothing but a tragi-comedy, hollow as it were, was built on nothing hence the conviction and sentence cannot stand: Macfoy v. UAC (1962) (supra). The same is hereby set aside.

Having held as above, I do not think it necessary to address issues No. 3 and 4 in the Appellant’s brief of argument and issue

No. 3 in the Respondent’s brief of argument. They are no longer worthy for any consideration as live issues. – See: Yusuf v. Toluhi (2008) 14 NWLR (Pt. 1107) 237.

The appeal in effect, succeeds on issue No. 2 and same is allowed. The Judgment of the General Court Martial is set aside and the Appellant, in consequence, is discharged.
Ordered accordingly.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother Sa’idu Tanko Husaini, JCA. I agree with the entire reasoning therein and conclusion that the appeal is meritorious and should be allowed. It is hereby allowed. I also adopt the consequential orders made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother SAIDU TANKO HUSAINI JCA, where the issues in contention in this appeal have been succinctly set out and determined.

I am in agreement with my learned brother that the case against the Appellant was not properly initiated at the trial General Court Marital in view of the failure of the Convening Officer to sign the Charge Sheet.

For the fuller reasons given by my learned brother in the lead judgment. I also allow this appeal and set aside the decision of the General Court Martial. The Appellant is consequently discharged.

Appearances:

H. Muhammed, with him, S. I. Abdulaziz and M. I. Salahudeen, Esq. For Appellant(s)

Muhammed holding brief for A. T. Udechukwu, Esq. For Respondent(s)