JUDGEMENT DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, CFR, JSC -SC/889/2017

 SC/889/2017

JUDGEMENT DELIVERED BY  HELEN MORONKEJI OGUNWUMIJU, JSC

This is an appeal against the judgement of the Court of Appeal Kaduna Division coram: Bdliya, Kalio, and Adefope-Okojoe, JJCA delivered on 17th day of February, 2017 wherein it declared the proceedings at the trial court(General Court Martial) a nullity but went ahead to hold that it cannot discharge and acquit the defendant as that will amount to validating the decision of a court which is a nullity.

It is against this that the Appellant filed his Notice of Appeal to the Supreme Court containing two grounds of appeal which was filed on the 16th of March, 2017.

The facts that led to this appeal are as follows:

The Appellant at all times material to this case was Sergeant in the Nigerian Army. On or about the 9th day of December 2012, the Appellant while on duty at African Petroleum (AP) filling station at Sabon Tasha, Kaduna, shot at one Isa Mohammed (now deceased) with an AK-47. Isah Mohammed later died at St. Gerald’s Catholic Hospital, Kaduna the following day.

The Appellant was arraigned before General Court Martial, Kaduna (Hereinafter called the trial court) on a two count charge, to wit: the offences by or in relation to sentries watch, etc. punishable under Section 50(1)(d) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria 2014 and murder punishable under Section 106 (a) of the Armed Forces Act, Laws of the Federation of Nigeria, 2014.

At the conclusion of the Court Martial, the Appellant was convicted and sentenced on Count 1 to be reduced to the rank of Cpl and Death with respect to Count 2. The decision of the General Court Martial was confirmed by the appropriate superior authority. The Appellant received notification of the confirmation of the finding of the trial General Court Martial on the 26th June, 2014 when he was processed to the civil prisons in Kaduna.

The Appellant being dissatisfied with the decision of the General Court Martial filed an appeal to the Court of Appeal, Kaduna. The Appellant’s appeal to the Court of Appeal (hereinafter called the Court below) was partly allowed, the judgement of the trial Court was set aside on grounds that the charge sheet having not been properly signed by the Appellant’s commanding officer as required by law rendered all proceedings predicated on that charge sheet a nullity. In conclusion, the Court went on to hold on page 319 of the Record that “Having found the charge sheet to be a nullity, it follows that the proceedings based on it including the judgement of the General Court Martial are equally incurably bad in consequence, I find that the appeal has merit. The Appellant however cannot be discharged and acquitted as that will amount to validating the judgement that’s a nullity. The judgement of the General Court Martial is hereby set aside”

The purpose of that the Appellant wants this Court to discharge him and not subject him to a fresh trial by virtue of Section 193 of the Armed Forces Act. The sole issue is expressed in the Appellant’s brief settled by Dr. R. O. Atabo, SAN as follows:

” Whether the decision of the Lower Court that Appellant cannot be discharged and acquitted was right having allowed the appeal and held the charge sheet and judgement of the General Court Martial to be a nullity and whether the judgement of the Lower Court does not amount to a denial of the Appellant’s fundamental right and thereby occasion a miscarriage of justice in the circumstance of this case considering the provisions of Section 193 of the Armed Forces Act CAP. A 20 LFN, 2004″

The Respondent’s brief settled by Isaac Udoka states the sole issue as follows:

 ‘Assuming that the Lower Court was right when it declared the trial of the GCM a nullity, whether the appropriate order a fresh trial and to keep the Appellant under detention bearing in mind the nature of the offences?’

SOLE ISSUE

Learned Appellant’s counsel argued that notwithstanding the findings of the Court below and the setting aside of the judgement which convicted the Appellant is still being held in prison awaiting trial in contravention of Section 193 of the Armed Forces Act is to the effect that anyone whose conviction by the Court Martial is quashed by an appellate court shall not be liable to be tried for that offence by either a court martial or by another court avails the Appellant in this case. Counsel insisted that the proper order to be made in the circumstances of this case is that of discharge and acquittal as the Appellant can no longer be tried for that same offence, the judgement of the Court Martial having been nullified.

Counsel submitted that the words of the statute are so clear and unambiguous and that they should be given their proper meaning. Counsel urged this Court not to subject the Appellant to a mere discharge but to acquit him rather than subject him to the whims of the prosecution to face a retrial. Counsel cited CHIEF OF STAFF v. IYEN(2005) 6 NWLR Pt. 922 Pg. 496 at 543. Counsel argued that the Court below should have looked at the whole evidence of the trial court and arrived at a conclusion on the merit of the appeal to arrive at a conclusion to acquit the Appellant. Counsel cited MOHAMMED v. THE STATE (2013) 5 NWLR Pt. 1347 Pg. 315 at Pg 327

Counsel further submitted that Section 193 of Armed Forces Act uses the word, “shall” which denotes “command” and that the implication of nullifying a proceeding and quashing a proceeding is one and the same. Hence the charge sheet having been found to be a nullity and the judgement also held to be a nullity stands quashed.

Counsel argued that it was erroneous of the Court below not to have made an order of discharge forthwith at the minimum, pending the execution of an order of retrial which should have been made by the Court below. Learned Appellant’s counsel argued passionately that even if an order of acquittal cannot be made so that the Appellant can breathe the air of freedom before a retrial is conducted. Counsel argued that it is unconstitutional in the circumstances of this case to continue to keep the Appellant in custody pending the time the Respondent would conduct another trial. Counsel argued that in the circumstances, NIGERIAN AIR FORCE v. KAMALDEEN(2007) 7 NWLR Pt. 1032 Pg. 164 should not be followed. Counsel argued this Court to hold that the decision of the Court below is perverse and should be set aside. Counsel urged the Court to give a consequential order discharging the Appellant and releasing him from prison custody. Counsel cited FGN v. ZEBRA ENERGY (2002) 18 NWLR Pt.798 Pg.162 at 202; AKINBOBOLA v. PLISON FISKO NIG LTD (1991) 1 NWLR Pt.167 Pg. 270 at 288.

The Learned Respondent’s counsel in rebuttal argued that the appropriate order that the Court below should have made was an order of retrial and that the Appellant would have been kept in custody during the tenure of the re-trial. Counsel agreed with the learned counsel for the Appellant that where a trial is declared to be nullity, the import is that there has never been a trial as the purported trial has no legal force or effect whatsoever. Counsel cited SUNDAY KAJUBO v. THE STATE (1988) 1 NSCC 475.

Learned Respondent’s counsel argued that assuming without conceding that the charge sheet which was not personally signed by the Appellant’s Commanding Officer was defective, notwithstanding, the evidence taken as a whole disclosed a substantial case against the Appellant and there’s no evidence that the failure of the commanding officer to sign the charge sheet occasioned any miscarriage of justice.

Counsel argued that the murder for which the Appellant was charged and convicted is a very grave offence indeed and it would be a greater injustice to allow the Appellant to walk home free than to order a re-trial. Counsel argued the view that a fresh trial will not be oppressive or prejudicial to the Appellant.

On the other leg of the argument proffered by the Appellant, learned Respondent’s Counsel argued that the Section 193 of the Armed Forces Act, 2004 is inapplicable to this case as it is only applicable where conviction for the offence was quashed on the merit. Where the trial was quashed on a technicality, a re-trial is the appropriate order to make. Counsel cited REAR ADMIRAL AGBITO v. THE NIGERIAN NAVY (2011) 4 NWLR Pt.1236 Pg. 175. Counsel argued further that even where a trial has been quashed on the merit, which is not the case here, the Appellant can still be tried for a criminal offence having the same ingredient by an order of a superior court. Counsel cited OLORIEGBE v. OMOTOSHO (1994) 1 NWLR Pt.270 Pg.336 to urge the view that Section 193 of The Armed Forces Act is not contrary to Section 36(9) of the 1999 Constitution (as altered). Counsel argued that the length of time spent in prison custody is immaterial in this case given seriousness of the charge of the murder levied against the Appellant. Counsel cited OKODUWA v. THE STATE (1988) 1 NSCC 718 and urged this Court to order a re-trial of the Appellant by the Court Martial in the circumstances.

OPINION

My Lords, the enrolled order of the Court below on Pg. 304 of the Record reads as follows:

1. The Appellant has merit.

1. The Appellant however cannot be discharged and acquitted as that will amount to validating the judgement that is nullity.

III. The judgement of general court martial is hereby set aside.

Nowhere in the lead judgement of the Court below and the contributions of other justices was there an order of retrial having found that the judgement of the Court Martial was nullity. That situation lent further problems to this issue. The issue here from the Appellant’s perspective is that this Court should immediately order a re-trial and, in the interim, pending the preparedness of the Army to retry the Appellant, make an order that he should be discharged forthwith. The other alternative argued on behalf of the Appellant is that he should not be retried at all pursuant to Section 193 of the Armed Forces Act since his conviction had been quashed by the Court below. It was erroneous of the Court below to have made an inchoate order in the circumstances of this case. By the failure of the Court below to make an executory order of retrial, the Appellant has perforce been in the prison since February, 2017, more than seven years ago. Surely the Court below realized that it has power to do so being an appellate court over court martial proceedings pursuant to Section 240 of the 1999 Constitution (as altered). It was at liberty to make consequential orders to give effect to its judgement. See FGN v. ZEBRA ENERGY (SUPRA); AKINBOBOLA v. PLISON FISKO NIG LTD (SUPRA)

Since the Court below failed to consider the appeal on the merit, this Court ordinarily cannot consider the appeal on the merit. The trial and intermediate Courts have been admonished several times that they are obliged to consider and resolve all procedural and substantial issues of law and facts set before them for determination so that an appellate court can be seized of all the matters on appeal to ensure a final determination once and for all, the totality of the issues in controversy between the parties. See TYONEX NIG. LTD & ANOR V. PFIZER LTD (2019) LPELR-49520(SC) (PP. 46 PARAS. A); GIDIYA & ORS V. SANUSI & ORS (2022) LPELR-58932(SC) (PP. 10-12 PARAS.E)

My Lords, Section 193 of the Armed Forces Act provides as follows:

“Where the conviction of a person by a court-martial for an offence has been quashed under this part, he shall not be liable to be tried for that offence by a court-martial or by any other court”.

The question here is what is the meaning of a trial that has been declared “a nullity”, a trial that has been “set aside”, and a trial that has been “quashed”.

A null judgement has been described as a void act, an act which has no legal force, effect or consequence. It is as if nothing happened. A legal action or proceeding that is incurably bad. It confers no right or impose no obligation on anybody. See LASISI v. THE STATE (2013) LPERL- 20715(SC); OKAFOR v. AG ANAMBRA (1991) 6 NWLR Pt. 200 Pg. 659; AJIBAYE v. ISHOLA (2006) LPERL-301(SC). It can be caused as in this case by a serious procedural blunder which goes to the jurisdiction of the Court to try the case.

A wrong judgement may be “set aside” as being perverse or for a number of other reasons but such a judgement may not necessarily be a null judgement. See NNADOZIE & ORS v. MBAGWU (2008) LPERL-2055(SC)(Pp.31 Paras. A). Also, KIM v. THE STATE (1992) LPERL-1691(SC). A mistrial or a misdirection that caused miscarriage of justice may lead to the judgement being set aside. See ONU & ORS v. IDU & ORS (2006) LPERL-2696(SC) where Court held as follows:

“…where however, it is established on appeal, that the trial court in coming to its decision, either has applied wrong principles of law or has taken into account relevant matters which it ought not to have taken into account or has failed to take the same into account, the appellate court, will not hesitate to set aside the judgement. See Sandy v. Hotogua(1952) 14 WACA 18 at 20; Lion Buildings LTD. v. Shadipe (1976) 12 SC. 135 citing Macaulay v. Tukuru (1981-1911) 1 NWLR 35: Otogbolu v. Okeluwa & ORS (1981) 6-7 SC. 99 at 105-107, just to mention but a few.”

So also, the term “quash” as used in most of the law reports denote where some valid orders of a court arrived at on a wrong premise is found wanting at law and is set aside and the consequential orders are “quashed”. A judgement is valid once it is handed down by a competent Court after due process when there is nothing extrinsic to nullify same. The conclusions in the judgement can only be set aside by an appellate court and it’s consequential orders quashed. See OSAFILE & ANOR v. ODI & ANOR (1990) 5 SC Pt. 11 Pg. 1, NWOKEDI & ORS v. OKUGO & ORS(2002) 16 NWLR  Pt.794  Pg.441.

The term “quash” is also used when the prerogative orders of certiorari are being sought to upturn or quash the proceedings and/or orders of an inferior court of record and to transfer them to the superior court of record. Certiorari proceedings to determine whether the proceedings and orders of the inferior court have all the characteristics of a valid proceedings or orders imbued with valid jurisdiction, and thus are proceedings on that point alone and do not go to the merit of the original dispute between the parties.

In certiorari proceedings, the applicant asks the Court to remove the case from the inferior court to the superior court with the purpose of quashing same. Therefore, the term quash can refer to proceedings & judgement or orders made not on the merit or substance of the cause of action. I cannot subscribe to the argument of learned Appellant’s counsel that the null proceedings tantamount to quashed proceedings.

Undoubtedly, Section 193 of the Armed Forces Act is a codification for the purposes of the Army of Section 36 (9) of the 1999 Constitution (as altered) which provides as follows:

“No person who shows that he has been tried by any court of competent jurisdiction or tribunal of a criminal offence and either convicted or acquitted shall again be tried for that offence or criminal offence having the same ingredients as that offence save upon the order of a superior court”

I agree with the learned Respondent’s Counsel that Section 193 is not applicable to the circumstances of the case since the Court below did not deign to determine the Appellant’s appeal on the merit, not to talk of quashing or affirming his conviction. The decision of the Court below nullifying the trial of the General Court Martial cannot be said to have determined on the merit of the case. Section 193 of the Armed Forces Act obviously protects against double Jeopardy and activates the doctrine of Autre fois acquit or Autre fois convict which bars a person from being tried twice for an offence for which he had been hitherto tried and acquitted or convicted. See KALU v. NIGERIAN ARMY (2010) NWLR Pt.1185 Pg. 433 at 451

As I stated earlier, the established precedent except in exceptional circumstances is that the Court below should have ordered a speedy retrial before another general court martial convened for that purpose.

In REAR ADMIRAL AGBITI v. NIGERIAN NAVY (2011) 4 NWLR Pt. 1236, 175. The supreme court held thus:

“This Court appreciated the fact that the offences preferred against the Appellant were of great concern to Nigeria as a nation, economically and security wise and nobody ought to be left off on technicalities on them but rules of evidence and statutory criminal procedure must be followed to the letter in the prosecution of criminal cases…The nullification of this trial was however held to be without prejudice to the Appellant being re-arraigned before another panel or court martial”.

In this case under review, the Appellant in the eyes of the law had not been tried at all since the law does not recognize the Court Martial proceedings to which he had been subjected since 2013, more than 11 years ago and the record shows he has been in army and subsequently civil custody since 10/12/2012. To make matters worse, as a result of the inchoate conclusion of the Court below in failing to order a speedy retrial, the Appellant has been in custody since 2017 after his trial was declared nullity by the Court below. That was seven years ago. The life of a Nigerian must mean something to its constituted authority.

Learned Appellant’s counsel misconceived the law in seeking to apply the provision of Section 193, of the Armed Forces Act to a proceeding that he has conceded is a nullity. Thus, the issue of autrefois acquit  or autrefois convict does not apply.

The attempt to use Section 193 of the Armed Forces Act to set an absolute acquittal for the Appellant is completely misconceived. It is a complete acquittal or conviction on the merits by a court of competent jurisdiction that can found a plea of autrefois acquit or convict. See NIGERIAN AIRFORCE v. KAMALDEEN (2007) 7 NWLR Pt. 1032 Pg. 164 Pg. 168.

My Lords, an allegation of crime is not a ground for perpetual detention no matter the gravity of the offence. Hence people should not be kept in detention in perpetuity at the pleasure of the authority saddled with the responsibility to prosecute them when there’s an allegation of crime. It is in the bid to prevent such situation that the Constitution has provided for time limit within which individuals who are alleged to have committed offences to be tried before Courts of competent jurisdiction.

The constitution provides for criminal trial to be commenced within a reasonable time and reasonable time to avoid abuse is also defined by the constitution. The 1999 constitution of the federal republic of Nigeria (as altered) is clear on what constitutes reasonable time within which a person can be tried. My Lords, Section 35(1) of the constitution provides thus:

” Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law

1. In execution of the sentence or order of court in respect of a criminal offence of which he has been found guilty;

1. By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law.

1. For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before the court of law within a reasonable time, and if he is not tried within a period of-

(a) Two months from the date of arrest or detention in the case of a person who is in custody or is not entitled to bail or

(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail.

He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”

In MOHAMMED v. THE STATE (2013) 5 NWLR Pt. 1347 Pg. 315 at Pg. 327 this Court held at page 326 of the NWLR as follows:

“Furthermore, taking into consideration the whole evidence on record which clearly disclosed that the Appellant caused the death of the deceased to the surrounding circumstances in which the deceased had been having affair with the appellant’s wife who even confirmed the fact to the Appellant, I cannot say that a substantial case of culpable homicide punishable with death, on the face of extreme provocation had been disclosed against the Appellant to justify any order of his retrial.”

This Court then concluded on Pg.327 as follows:

“In the final analysis, I find merit in this appeal and hereby allow it. While the order of the Court below declaring the proceedings of the trial of the Appellant by the trial court a complete nullity is upheld, the order of the re-trial of the Appellant whose trial had been declared a nullity, is certainly not in order under the law, and is accordingly hereby set aside. The Appellant whose conviction and sentence have been nullified, shall be set free forthwith”.

This Court relied on the locus classics case of YESUFU ABODUNDU & ORS v. THE QUEEN (1959) 1 NSCC 56 at 60 where the Supreme Court stated as follows:

“We are of the opinion that, before deciding to order a re-trial, this court must be satisfied –

(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to involve the proviso to Section 11(1) of the Ordinance;

(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant;

(c) That there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time;

(d) That the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant, are not merely trivial; and

(e) That to refuse an order for a re-trial would occasion a greater miscarriage of justice than to grant it.”

These principles were further reaffirmed by this Court in ADEOYE v. THE STATE (1999) 6 NWLR (PT.605) 74 at 88.

In MOHAMMED v. THE STATE (SUPRA) this Court considered the facts and evidence at the trial court even though the Court below did not as in this case make any pronouncement on the merit of the appeal itself. This Court was of the view that given the circumstances on the record, even though the Appellant was convicted at trial, it would be oppressive to put the Appellant on trial a second time and that no miscarriage of justice would be occasioned if the Appellant is not subjected to a re-trial. This Court went into the undisputed facts at the trial to arrive at the conclusion that it would be onerous on the Appellant to order a re-trial. This Court held that the Appellant was entitled to the defence of provocation and having spent more than 10 years in custody before the order of retrial, no substantial case had been disclosed against the Appellant to warrant a retrial for the offence of culpable homicide since the facts clearly disclosed the defence of provocation.

My Lords, in this case, the Appellant pleaded self defence in that he was at his sentry post at night when someone walked aggressively towards him and the person refused to heed his order to stop and he shot at the person. There were no eyewitnesses to the shooting. As this Court held in MOHAMMED v. THE STATE (SUPRA), the record disclosed prima facie the defence of self defence for the Appellant in this case under review, the Appellant might on appeal on the merit be acquitted on the basis of self defence or at worst for manslaughter or unlawful killing since there is no evidence on record here that he shot at the deceased with malice aforethought.

The Appellant has been put through the rigors of trial, though on a charge which was incurably bad,  been in detention to date for over eleven(11) years for an offence allegedly committed in his line of duty as military officer on sentry duty. He cannot be acquitted being suspected of having committed a capital offence and there is no case before this Court to warrant an acquittal, however, the proper order for the Court to make is one discharging the Appellant having been in prison long over the constitutionally allowed period for incarceration awaiting trial.

The Courts have always held that an order of retrial in criminal proceedings is made only where the interest of justice requires it. See QUEEN v. EDACHE (1962) 1 ALL NLR 22; KAJUBO v. THE STATE (1988) 1 NWLR Pt. 73. Pg. 721.

Looking at the case of the Appellant under condition (c) quoted in the case of YESUFU ABODUNDU & ORS v. THE QUEEN (SUPRA), the Appellant having spent 11 years in custody as at the date when his appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time. Even if an order of retrial within a specific time is made, it cannot avail the Appellant. The Appellant’s trial before the court martial started and was completed within two months of the incident. A retrial would not have that luxury of readily available witnesses and the Appellant will continue to languish in prison custody as most of the civilian witnesses called were transient workers. It is therefore my view that in the circumstances of the present case,  it would definitely occasion a greater miscarriage of justice if an order of retrial is made by this Court. See OKODUWA v. THE STATE (1988) 2 NWLR (Pt.76) 333; OKEGBU v. THE STATE (1979) 11 SC 1; BARMO v. THE STATE (2000) 1 NWLR (Pt.641) 424; OKERE v. THE STAFF (2001) 2 NWLR (Pt.697) 397; and SAMAILA UMARU v. THE STATE (2009) 8 NWLR (Pt.1174) 134 at 145-147 where Musdapher, JSC (as he then was) in similar situations as in the present case, refused to uphold any order of retrial by the Court of Appeal.

In final analysis, I find merit in this appeal and I hereby allow it. While the order of the Court below declaring the proceedings of the trial of the Court Martial (trial court) a complete nullity is upheld. The Appellant, whose conviction and sentence has been nullified, shall be set free forthwith.

HELEN MORONKEJI OGUNWUMIJU, CFR

JUSTICE, SUPREME COURT.

APPEARANCE:

Dr. R. O. Atabo, SAN with him A. G. Haruna, Emmanuel Okwoli and L.E. Bako for the Appellant.

Isaac Udoka for the Respondent.