3PLR – LT COL. A. AKINWALE V. NIGERIA ARMY
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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LT COL. A. AKINWALE
V.
NIGERIA ARMY
IN THE COURT OF APPEAL
[LAGOS DIVISION]
CA/L/345/98
3PLR/2001/203 (CA)
OTHER CITATIONS
[2001] 16 NWLR (PT. 738) 109
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE, JCA (Presided)
SULEIMAN GALADIMA, JCA (Delivered the leading judgment)
PIUS OLAYIWOLA ADEREMI, JCA
REPRESENTATION
Olayinka A. Doherty Esq., for the appellant.
Jimoh Abdulkadir Adamu Esq., for the respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:– Prosecution under the General Court Martial pursuant to the Armed Forces Decree – Investigation, Conviction, Sentencing and Confirmation of Sentence – Whether one integral process even if split under more than one panel – Whether the same person can act as the sentencing and confirming authority – Period provided for accused person to make representations to the confirming authority – Whether a right that cannot be short-circuited by confirming authority – When such short-circuiting would amount to breach of fair fairing
CRIMINAL LAW AND PROCEDURE:– Right to counsel of person facing prosecution before a General Court Martial – Duty of accused person to secure his own counsel – Whether accused can secure counsel from within or outside the ranks of active military lawyers – Whether tribunal can impose counsel on accused person – What would not amount to imposition of counsel
CRIMINAL LAW AND PROCEDURE:– Likelihood of bias – What constitutes same in proceedings under General Court Martial – Where same authority acts as investigating/sentencing authority as well as confirming authority – Where confirming authority confirms sentence without receiving representation of accused person – Where confirming authority promulgates sentence without observing the statutorily prescribed period allowed accused person to make representation to it – Whether raises a doubt which must be resolved in favour of accused person by appellate court
MILITARY LAW:- Procedure for General Court Martial under the Armed Forces Decree 1993 – Provisions relating to initiation of investigation into alleged wrongdoings of accused person and the convening of the General Court Martial – Integral nature of the Investigative/Sentencing segment of the GCM and the Confirming/Promulgation segment – Requirement for separate authorities for the different but integrated segment – Justification of – Need to observe Fair Hearing principles – Effect of failure thereto – Whether fatal for entire proceedings and not just a segment of it
MILITARY LAW:- Procedure for General Court Martial under the Armed Forces Decree 1993 – Who may set up/convene the General Court Martial – Distinction between the Investigating/Sentencing segments and Confirming/Promulgation segments of a General Court Martial – Whether section 152 (a) of Decree 105 of 1993 empowers the convening officer to act as both the convening and confirming authority – Need for a General Court Martial to strictly observe rules of equity and natural justice applicable to it
MILITARY LAW:- Procedure for General Court Martial under the Armed Forces Decree 1993 – Right of a person convicted by a General Court Martial to make representations to the Confirming authority under section 152(2) within a statutorily prescribed time period – Whether can be denied, short-circuited or limited through reduction of the time period
MILITARY LAW:- Procedure for General Court Martial under the Armed Forces Decree 1993 – Right of person accused before a General Court Martial to counsel of choice – Whether choice restricted to active military officers – Whether counsel can be imposed upon accused person by General Court Martial – On whom lies the duty to secure counsel for accused person – Where accused fails to secure a counsel – Duty of tribunal thereto
HUMAN RIGHTS – FAIR HEARING:– Right to fair hearing and military court martial – Nature of prosecution under the Armed Forces Decree – Duty to observe procedures provided strictly – When failure thereto would amount to breach of fair hearing
HUMAN RIGHTS – FAIR HEARING:– Right to fair hearing and military court martial – Right granted an accused person under Section 152 of the Armed Forces Decree – Right to a prescribed period within which to make representation to a confirming authority different from the investigating/sentencing authority – Where period short-circuited or same person acting as investigating/sentencing as well as confirming authority – Implication for validity of outcome of proceedings
HUMAN RIGHTS – FAIR HEARING – Right to fair hearing – Twin pillars of same – Where statutorily secured – Armed Forces Decree No. 105 of 1993, section 149(1) – Effect of failure to observe same – Duty of appellate court thereto
PRACTICE AND PROCEDURE – COURT:- General Court Martial – Nature of – Integral nature of the Investigative/Sentencing and Confirming processes of a General Court Martial – Necessity of observing strictly the prescribed steps
INTERPRETATION OF STATUTES:– Armed Forces Decree No. 105 of 1993, section 149 and 152 – Interpretation of
MAIN JUDGMENT
SULEIMAN GALADIMA, JCA (Delivering the leading judgment): The appellant, a Lieutenant Colonel under the Nigerian Army was until his trial and conviction attached to the Nigerian Army Headquarters Lagos Garrison Command Lagos. On 7/8/96, Brigadier General Aziza (rtd) then the Commander of Lagos Garrison Command convened a General Court Martial (hereinafter referred to as ‘GCM’) to try the appellant on an eight count charge which reads as follows:
“Charge No. 1
Committing a civil offence contrary to section 114 of the Armed Forces Decree that is to say illegal possession of firearms contrary to section 3 of the Firearms Act Cap. 146 in that he at Lagos on or about 4th April 1996 was illegally in possession of FN rifle S/No. 765546 with Butt No. 234.
Charge No. 2
Committing a civil offence contrary to section 114 of the Armed Forces Decree 1993 that is to say illegal possession of firearms contrary to section 3 of the Firearms Act Cap. 146 in that he at Lagos on or about 4th April 1996 was in illegal possession of FN rifle S/No. 766335 with Butt No. 606.
Charge No. 3
Committing a civil offence contrary to section 114 of the Armed Forces Decree 1993 that is to say illegal possession of firearms contrary to section 3 of the Firearms Act Cap.146. in that he at Lagos on or about 4th April, 1996 was in illegal possession of a Kalashnikou rifle S/No. 1975813421.
Charge No. 4
Committing a civil offence contrary to section 114 of the Armed Forces Decree 1993 that is to say illegal possession of firearms contrary to section 3 of the Firearms Act Cap. 146. in that he at Lagos on or about 4th April 1996 was in illegal possession of a colt pistol.
Charge No. 5
Conduct to the prejudice of good order and service discipline contrary to section 103 of the Armed Forces Decree 1993 in that he at Lagos on or about 4th April 1996 in possession of 2 Nigerian International Passports Nos. CO 90479 and A43090.
Charge No. 6
Conduct to the prejudice of good order and service discipline contrary to section l03 of the Armed Forces Decree 1993 in that he at Lagos between 1st – 30th March 1996 sent 2 soldiers to harrass civilians over a private land matter.
Charge No. 7
Conduct to the prejudice of good order and service discipline contrary to section 103 of the Armed Forces Decree 1993 in that he at Lagos on or about 4th April 1996 detailed 2 soldiers to perform guard duties in his house without lawful authority.
Charge No. 8
Fraudulent misapplication of service property contrary to section 66 of Armed Forces Decree 1993, in that he at Lagos on or about 4th April 1996 without lawful authority diverted a Nigerian Army Steyr Puch vehicle for his personal use.”
At the trial before the GCM the appellant pleaded guilty to 4 counts of the charge, while counts six and seven were struck out for not providing enough particulars as required by law. The prosecution also applied under rule 82 of the Rule of Procedure to withdraw the fifth and eighth charge and this was granted as well.
On 16/8/96, the GCM upon the admissions of guilt, sentenced the appellant to a term of 15 years on each count of the charge and ordered the sentence to run concurrently.
On the same 16/8/96 the said sentence and conviction were remitted by the confirming authority to 10 years imprisonment and it was to run concurrently. Dissatisfied, the appellant brought this appeal against the decision of the GCM. In the appellant’s brief filed the issues for determination in the appeal were identified as the following:
“1. Whether the appellant was accorded and afforded fair hearing in the trial convened by the Commander, Lagos Garrison Command progressing through the process of hearing before the General Court Martial, the confirmation and promulgation of sentence.
- Whether the Commander, Lagos Garrison Command can be the initiator of investigations into the wrongdoing alleged to have been committed by the appellant, the convener of the General Court Martial and also the confirming authority within the contemplation of section 33(1) of the Constitution of the Federal Republic of Nigeria, which guarantees fair hearing.
- Whether due process of law was complied with having regard to the fact that the General Court Martial that tried the appellant delivered its sentence on 16th August 1996 same was confirmed on 16th August, 1996 on the same day and was promulgated on 16th August, 1996.
- Whether having regard to the fact that the appellant’s choice of counsel was limited only to serving military officers and was not afforded the opportunity of choosing counsel of his choice (not only from the military but also from the civil society) his trial at the General Court Martial violated his right under section 33(6) (3) of the Constitution.”
The respondent in its brief of argument adopted the four issues for determination as formulated by the appellant. I shall consider, the first and second issues together.
The first issue canvassed by the appellant is that he was not accorded fair hearing at the trial and the second issue is that whether the then Commander of Lagos Garrison Command can be the initiator of investigations into the wrongdoing alleged to have been committed by the appellant, the convener of the GCM and also the confirming authority within the contemplation of section 33 (1) of the 1979 Constitution of the Federal Republic of Nigeria which guarantees fair hearing.
Appellant’s complaint is that he has not been given fair hearing at his trial as provided for in section 33(1) of the 1979 Constitution. That section provides as follows:
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure the independence and impartiality.”
Generally the twin pillars of fair hearing are the two latin maxims “nemo judex in causa sua”, interpreted as “you shall not be a Judge in your own cause.” The second maxim is “audi alteram partem,” meaning, “you shall hear both sides”. The first rule also embraces the notion that where there is a likelihood of bias on the part of the person sitting in judgment that particular person must not determine the case otherwise the judgment would be a nullity. Section 33 (4) of the 1979 Constitution then applicable requires that any person charged with a criminal offence, shall unless the charge is withdrawn, be entitled to a fair hearing. In Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424 the Supreme Court clearly laid down guidelines on what constitutes fair hearing. It was held thus:
“The true test of fair hearing is the impression of the reasonable man who was present at the trial whether from his observation justice has been done in the case …”
See also Adigun v. A. G. Of Oyo State (1987) 12 SC 118. In the instant case the appellant an officer of the Lagos Garrison Command, Victoria Island, Lagos was on a special assignment with the then Chief of General Staff Lt. General Oladipo Diya (rtd) at Abuja. During this assignment he was accused of being in illegal possession of various arms and ammunition. He was arrested by the personnel from the Nigerian Army Intelligence Corp. and subsequently handed over to the Lagos Garrison Command for further investigations. Investigations were carried out by the
Garrison Command and the charge was referred to the General Court Martial that was convened by Brigadier-General P.N. Aziza (now rtd) who was then the Garrison Commander of the Lagos Garrison Command of which the appellant was the officer. Indeed, section 131 (2)(e) of the Armed Forces Decree No.105, 1993, gives a Brigade Commander powers to convene a General Court Martial. As a Commander, Lagos Garrison Command, a military formation with a status higher than that of a Brigade, Brigadier-General Aziza was duly qualified to set up GCM which tried the appellant. I agree that valid point has been made here. However, I do not see the merit in the submission of the learned counsel for the respondent that the commander of Lagos Garrison acted in accordance with the provision of the AFD No. 105 in force when he convened the GCM and subsequently confirmed the findings and sentence of the court.
It is misleading to say that section 152 (a) of Decree 105 of 1993 empowers the convening officer to act as both the convening and confirming authority. That section does not.
Section 152 (2) of the AFD provides as follows:
“The following shall not confirm the finding or sentence of a court martial, that is
(a) An officer who was a member of the court martial; or
(b) A person who, as commanding officer of the accused, investigated the allegation against him or who is for the time being the commanding officer of the accused; or
(c) A person who as appropriate superior authority, investigated allegations against the accused.”
One peculiar feature of the proceedings of General Court Martial is that the act of confirmation and promulgation are integral to and are components of processes of investigation, the trial and delivery of the sentence. In every procedure adopted there ought to be fairness. The procedure adopted by the Commander, the convening officer, by being the initiator of investigation into the wrongdoings by the appellant, the convener of the General Court Martial that tried him, the confirming authority of the sentence and conviction and promulgation of the sentence is contrary to equity and natural justice. It offends the nemo judex in causa sua.
Although not a member of the court martial as a convener, Brigadier-General P.N. Aziza had confirmed the sentence of the G.C.M, contrary to the provision of section 152 (b) and (c) of the A.F.D.1993 (as amended).
Shocking still is the question raised in the third issue formulated by the appellant for determination. This is whether due process was complied with having regard to the fact that the General Court Martial delivered its sentence on 16/8/96 and same was confirmed and promulgated on the same day.
The crucial issue for me to determine here is whether the process of confirmation or review of the sentence of 16/8/96 was scrupulously followed as specified in sections 149 of the A.F.D. 1993.
Section 149 (1) AFD provides that:
“An accused may within three months after being sentenced by a court martial and before the sentence is confirmed, submit to the confirming authority any written matter which may reasonably tend to affect the confirming authority’s decision whether to disapprove a finding of guilt or to approve sentence.”
It is most improbable whether a proper confirmation and review could be completed within only a day in view of the fact that the petition written on behalf of the appellant by his counsel was written and dated 16/8/96. This is the very day the court martial delivered its sentence confirmed and promulgated it. It is clear that the appellant’s petition against his conviction and sentence was not received, considered and judiciously reviewed before confirmation. This shoddy proceedings in my respectful view, make mockery of the independence and impartiality provided and guaranteed by the constitution of this country.
I am most shocked and greatly disturbed by the fact that the confirmation, conviction and sentence was done on the same day the decision of the General Court Martial was delivered.
Facing a similar unsatisfactory proceeding in an earlier appeal before this court in Col. Clement Tumba Gami v. The Nigerian Army Appeal No. CA/L/276/98 (unreported delivered on 29/l/2001, learned brother Oguntade, JCA in his lead judgment expressed a displeasure thus:
“I am however shocked or greatly disturbed by the fact that the confirmation of the decision of the GCM was done within four days after the decision was given. The appellant was in the process prevented from making representation to the confirming authority as to why the decision of the GCM should not be confirmed.
The confirming authority by proceeding to confirm the decision of the GCM without waiting for the representations of the appellant would appear to have believed that nothing the appellant said could have persuaded it to change its mind. The confirming authority had thus exposed itself to a justifiable accusation of bias against the appellant and unfairness in its approach. I think the approach was wrong and ought not to be repeated. If I had to decide this appeal on the propriety or otherwise of the decision of the confirming authority; I would set aside the confirmation and proceed to allow the appeal.”
Once again in this case the confirming authority has exposed itself to a justifiable accusation of bias against the appellant who has not been given fair hearing. It is because the approach of the confirming authority is shoddy and wrong I should not allow its decision to stand. On this score I must set aside the confirmation and allow the appeal.
With regard to the fourth issue I do not think any military defence counsel was assigned to the appellant as he has claimed. It was his responsibility to secure a counsel to defend him as stipulated in paragraph 1 (f) of the convening order attached to the record of proceedings. The appellant had failed to secure himself a counsel.
It was therefore right for the convening officer to provide defence counsel for the appellant. It is not shown however, that the convening authority had official influence on any of the defence counsel. Besides the two of the counsel, namely Major A. E. Airende and Ex-WOT. Afesunmen at the time of the trial were already retired from military service. The three counsel were indeed appellant’s choice. However this position taken in this last issue does not in anyway affect my earlier resolution of the three issues in favour of the appellant.
In the result, I would allow this appeal. I hereby set aside the conviction of the appellant by the General Court Martial on 16/8/96 and his conviction. In substitution therefore, I make an order discharging and acquitting the appellant on the offences charged. A copy of this judgment is to be made available urgently to the Attorney-General of the Federation.
GEORGE ADESOLA OGUNTADE, JCA:
The appellant was tried on 16/8/96 on some offences by the General Court Martial. The appellant pleaded guilty and was sentenced to 15 years imprisonment. The sentence was confirmed by the confirming authority on the same 16/8/96 and by the same person who had been the Chairman of the General Court Martial that tried and convicted the appellant.
Section 149(1) of the Armed Forces Decree (No. 105) of 1993 provides;
“149 (1) An accused may within three months after being sentenced by a court martial and before sentence is confirmed submit to the confirming authority any written matter which may reasonably tend to affect the confirming authority’s decision whether to disapprove a finding of guilty or to approve the sentence.”
The appellant had three months from 16/8/96 to send representations to the confirming authority. However, the confirming authority had short-circuited the process by not allowing the appellant the opportunity to urge on the confirming authority the reasons why the finding of the General Court Martial should not be confirmed. More alarming is the fact that it was the same person who had pronounced the sentence of 15 years I.H.L. who acted as the confirming authority and reduced the sentence to 10 years.
The process of hearing before the General Court Martial and the confirmation of sentences are one and the same integral part of the trial of an accused person under the Armed Forces Decree No. 105 of 1993. When a sentence has not been confirmed by the confirming authority, the hearing is not completed.
The confirmation of the sentence on the appellant in this case is a sham and was contrary to law. It is not possible to set aside the confirmation process and leave the sentence by the GCM in place. Both must go together and what affects the confirmation must affect the sentence by the GCM. If the appellant had been allowed to make representations and to a person other than Brigadier Aziza who chairmaned the GCM that tried and convicted the appellant, the sentence might have been wholly set aside. Of course it might also have been interfered with in some other manner different from what Brigadier Aziza did as the confirming authority. I suppose that we will never know what the position would have been. The appellant must have the benefit of an avoidable error recklessly and unfairly embarked upon by the confirming authority.
I would also pronounce the trial and conviction of the appellant a nullity. I discharge and acquit the appellant.
PIUS OLAYIWOLA ADEREMI, J.C.A.
I have had the privilege of reading in advance the judgment delivered by my learned brother, Galadima J.C.A. and I agree with his reasoning and conclusion that the entire proceedings before the lower court was replete with breach of the principles of fair hearing. This appeal must consequently be allowed and I also allow it. I also set aside the conviction and sentence of the appellant by the General Court Martial. He is discharged and acquitted of the offences charged.
Cases cited in the judgment
Adigun v. A. G. of Oyo State (1987) 12 SC 118.
Gami v. The Nigerian Army Appeal No. CA/L/276/98 (unreported delivered on 29/l/2001.
Mohammed v. Kano N.A. (1968) 1 All NLR 424.
Statutes referred to in the judgment
Armed Forces Decree No. 105 of 1993, section 66, 103, 114, 132(2), 149(1), 152(a)(b)(c).
Constitution of the Federation 1979, section 33(1)(4); 33(6)(3).
Firearms Act, section 3. Cap 149 Laws of the Federation 1990.
