➥ CASE SUMMARY OF:
Norbert Uche Okoro V. Nigerian Army Council (CA/I/146/97 · 23 Dec 1999)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Jurisdiction of court martial.
➥ CASE FACT/HISTORY
The appellant, a Major in the Nigerian Army was convicted on 27/12/96 for conduct to the prejudice of service discipline punishable under section 103 of the Armed Forces Decree, No. 105 of 1993. The proceedings (or trial) were conducted before a Court Martial (constituted under the Decree) which upon conviction sentenced the appellant to 18 months imprisonment. Being dissatisfied with his conviction, the appellant obtained the necessary leave and filed a notice of appeal to this court in terms with the Armed Forces (Amendment) Decree No. 15 of 1997 (section 183 thereof).
It is to be pointed out that this appeal is against conviction since the appellant has already finished serving the terms of imprisonment imposed on him by the Court Martial.
The prosecution’s case against the appellant was that on or about 13th January, 1996, he granted an unauthorised permission to a coup convict- Ex-Lt. Col. P.C. Izuorgu to travel from Ilorin to Lagos without proper security clearance. Lt. Col. P. C. Izuorgu was one of those convicted in the 1995 coup trial and sentenced to a term of imprisonment which he served at Ilorin Prison. On 3/1/96 some officers from Ilorin Prison had brought Exhibit P1 to PW1 – Major KTL Minimah wherein the prisons authority indicated that Lt. Col. P. C. Izuorgu had finished serving his sentence and would be released on 13/1/96. On 12/1/96 another set of officials brought a letter of reminder addressed to PW1. Unfortunately PW1 was away to Ibadan on that date so the prisons officials took the letter to the appellant as the next officer in rank or command. After seeing the two documents, the appellant advised the prisons official to wait until 14/1/96 before releasing the prisoner. The prisons officials explained that the official date of release (13/1/96) fell on a Sunday and that according to the prisons regulations or convention, a prisoner whose terms would expire on Sunday is to be released 24 hours earlier in order to avoid possible litigation. With this explanation, the appellant agreed and ordered PW3 to go to Ilorin Prisons on 13/1/96 and take delivery of the prisoner under armed escort.
When the prisoner was brought to the appellant he ordered that he be further detained at the Officers Mess under armed guard. Later on when PW1 still did not return from Ibadan, the appellant conveyed the prisoner in his personal car to the parade ground in Ilorin where he met PW2 and consulted him on the fate of the prisoner. PW2 advised that the prisoner should not be held any longer and should be released forthwith, and so the appellant ordered for the immediate release of the prisoner. However when PW1 later returned from Ibadan and heard that the appellant ordered the release of the prisoner he was upset and he ordered for the arrest of the appellant by members of the Directorate of Military Intelligence DM1 who arrested and detained him on 17/1/96. The appellant remained in this detention until his conviction on 27/12/96.
➥ ISSUE(S)
I. Whether the whole trial was not a nullity having regard to the lack of jurisdiction of the General Court Martial to try and convict the appellant having regard to its improper constitution?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE COURT MARTIAL WAS NOT PROPERLY CONSTITUTED
‘It is in line with the above principle of law on the issue of jurisdiction vis a vis the plain and unambiguous meaning of section 133(3) of the enabling Decree (i.e. No.1 05 of 1993) that I consider the constitution or composition of the Court Martial in the present case as invalid and defective. Clearly the two captains who were below the rank of the accused person/appellant were not qualified to be appointed or to take part as members of the Court Martial. Consequently, the said Court Martial which was not validly constituted in accordance with the provision of the enabling Decree lacked the required jurisdiction to adjudicate or to try the appellant. I therefore hold so.’
‘As regards the respondent’s argument on the application of the saving provision of section 133(7) in the case, I agree with the submission of the learned counsel for the appellant that there is nothing in the record of proceedings to show that the convening officer had satisfied himself that there was no officer of the same rank with the accused person (or of suitable qualification) available at the place and time of constituting the Court Martial. Neither is there anything in the record to show that the convening officer had sought for or obtained the consent of the superior authority before co-opting the two captains into the Court Martial (who are otherwise unqualified to be so appointed). Thus the inherent invalidity of the constitution or composition of the court in the present case cannot be cured or rectified by the provision of section 133(7) as argued by the respondent. Furthermore, the consent of the superior authority under section 133(7) is one of the conditions precedent to the application or invocation of the subsection whenever the need arises which necessitates deviation or departure from the strict and mandatory provision of section 133(3) in relation to the appointment of members of the Court Martial. Thus it cannot be presumed that because the General Officer Commanding (GOC) of the Army Division (or command) involved is aware of the qualifications or availability of officers under his command his decision to appoint non-qualified officers cannot be challenged and that any substitution made by the convening officer will be rendered valid even in the absence of the express consent or authority of the superior authority. This view in my view is very highly misconceived because, the GOC was also the convening officer in the present case and if we are to apply the wordings in section 133(7) he should seek for and obtain the consent or authority of “the proper superior authority”. In other words the proper authority whose consent is required for the purpose of the subsection must be superior to the convening officer. In the present case the proper superior authority appropriate for the purpose of the subsection (i.e. 133(7) in the present case should be an officer or authority who or which is superior to the G.O.C. (e.g. the Chief of Army Staff or the Minister of Defence). In any case I am of the view that the strict, statutory and mandatory requirement on the composition of the Court Martial in the present case (as provided in section 133(3) were not in any way saved or exempted by section 133(7) as canvassed by the respondents (in their brief).’
THE NON-OBJECTION BY THE APPELLANT AT THE COURT MARTIAL DOES NOT ACT AS A WAIVER
‘As regards the appellant’s non-objection to the membership of all the officers named in the convening order (as contained at page 3 of the record of proceedings) upon which the respondent’s brief relies to show that the said appellant had thereby submitted himself to the jurisdiction of the Court-Martial, it is my firm view that that submission is an after thought and misconceived. The issue of jurisdiction being intrinsic rather than extrinsic to adjudication is so fundamental that it cannot be waived by a party to the proceedings. In the present case where there is a statutory condition precedent imposed before the Court Martial can be competent to adjudicate (i.e. section 133(3)) and that condition has not been strictly fulfilled, such failure to fulfill cannot be waived by the appellant who was helpless under the circumstances. Also the duty to fulfill the said condition precedent was not cast on the said appellant but rather on the convening officer (i.e. the GOC). The non-objection by the said appellant cannot be treated as a waiver or an estoppel under the circumstances and even if so treated cannot avail the respondent. It is like a situation where a party who raises the issue of lack of jurisdiction is sought to be estopped merely because he took part in the proceedings at the lower court. This has been held by both the Supreme Court and this Court as irrelevant – See Ajakaiye v. Military Governor of Bendel State (1993) 9 SCNJ 242; Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676; Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661; Shaka v. Salisu (1996) 2 NWLR (Pt.428) 22 at 29. Thus a party cannot waive a situation where the Court clearly and apparently lacks jurisdiction – See Ugo v. Okafor (1996) 3 NWLR (Pt.438) 542 at 560; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt.170) 761 at 781 782; Ariori v. Elemo (1983) 1 SCNLR 1 (1983) 1 FRN 20 at 32 – 36. Consequently, in view of my above analysis, the contention of the respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, he 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. It is hereby discountenanced’]
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.
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✓ DECISION:
‘The whole proceedings of the General Court Martial which sat at the Headquarters of 2nd Mechanized Division Officers Mess, Agodi, Ibadan on 16/9/96 – 27/12/96 conducted without jurisdiction amounted to a nullity. I hereby declare it to be so. Consequently, the conviction of the appellant by the said incompetent General Court Martial is hereby set aside and quashed. The said appellant is hereby acquitted.’
➥ FURTHER DICTA:
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
Adamu, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Y. O. Alli (SAN).
⦿ FOR THE RESPONDENT(S)
O.N. Ibrahim, Esq. Senior Legal Officer, Federal Ministry of Justice.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
