SGT. AKAWU BALA v. NIGERIAN ARMY
(2017)LCN/10182(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of July, 2017
CA/K/263/M/2014(R)
RATIO
CHARGE SHEET: THE EFFECT OF A CHARGE SHEET FOUND TO BE A NULLITY
We feel that the intention of the judgment is very clear. The judgment of the General Court Marshal was held to be a nullity on account of a charge sheet found to be a nullity. The implication of deciding that the judgment of the General Court Marshal is a nullity, is that the fate of the Applicant is the same as a person remanded in prison custody awaiting his trial for a criminal offence. That being the case, our judgment is varied by adding that the Applicant, that is to say, the Appellant before us at the hearing of the appeal, shall remain in prison custody pending when he is properly charged and tried by a General Court Marshal properly constituted for that purpose. PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
SGT. AKAWU BALA Appellant(s)
AND
NIGERIAN ARMY Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Lead Ruling): On 4/7/17, a motion on notice was moved by H.L. Haruna (Mrs.) on behalf of the Appellant Sgt. Akawu Bala. The motion was filed on 5/5/17. It seeks that we vary our order made pursuant to the judgment in Appeal No. CA/K/8/C/2016 so as to give effect to the meaning or intention of the judgment.
The motion was concerned specifically with the following conclusions in the judgment, viz: –
I. The appeal has merit;
II. The Appellant however cannot be discharged and acquitted as that will amount to validating the judgment that is a nullity; and
III. The judgment of the general Court Martial is hereby set aside.
From the affidavit in support of the motion on notice, it is clear that the Prison authorities have difficulty in giving effect to the drawn up order of this Court. They are not clear whether they are to release the Appellant or to continue to keep him in prison custody.
?In the written address in support of the application, Dr. R.O. Atabo Esq. conceded that the general rule is that a Court cannot review or vary its judgment as that may
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amount to sitting on appeal over its decision already delivered. Learned Counsel submitted however that where it is necessary to correct clerical errors arising from accidental slips or omission or to vary the judgment to give effect to its meaning or intention, the Court can vary its judgment. We were referred to Order 19 (4) of the Court of Appeal Rules, 2016 and the case of OMEIKE V. OMEIKE (2013) 13 NWLR PART 1371 p.423 at p. 425.
Judgment in the matter, the subject matter of the present application, was delivered on the 17th day of February, 2017. In the last paragraph of the lead judgment which my learned brothers gave me the honour to deliver, I concluded thus: –
“Having found the charge sheet to be a nullity, it follows that the proceedings based on it including the judgment of the General Court Marshal are equally incurably bad. In consequence therefore, I find that the appeal has merit. The Appellant cannot be discharged and acquitted as that will amount to validating the judgment that is a nullity. The judgment of the General Court Marshal is hereby set aside.”
We feel that the intention of the judgment is very clear. The judgment of
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the General Court Marshal was held to be a nullity on account of a charge sheet found to be a nullity. The implication of deciding that the judgment of the General Court Marshal is a nullity, is that the fate of the Applicant is the same as a person remanded in prison custody awaiting his trial for a criminal offence. That being the case, our judgment is varied by adding that the Applicant, that is to say, the Appellant before us at the hearing of the appeal, shall remain in prison custody pending when he is properly charged and tried by a General Court Marshal properly constituted for that purpose.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the ruling delivered by my learned brother, Obietonbara Daniel-Kalio, J.C.A. I agree with my lord’s interpretation of the concluding paragraph of the judgment delivered on the 17th February, 2017, in appeal No. CA/K/8/C/2016, that the applicant cannot be discharged and acquitted even though the judgment of the General Court Martial has been declared a nullity, and set aside. Rather, the applicant is to be remanded in Prison custody to be tried by a properly Constituted General
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Court Martial on a competent charge.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: Having heard Motion on Notice dated 4/7/17, moved by H. L. Haruna (Mrs.) on behalf of the Appellant Sgt Akawu Bala for variation of our order made pursuant to the Judgment of this Court of 17/2/17, the Judgment of this Court as stated in the lead Ruling of my learned brother, Obientobara Daniel Kalio, JCA is varied by adding that the Appellant shall remain in prison custody pending when he is properly charged and tried by a General Court Martial properly constituted for that purpose.
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Appearances:
Dr. R.O. AtaboFor Appellant(s)
Isaac Udoka, Esq.For Respondent(s)
