Major General I. Sani V. Nigerian Army (2009)
LawGlobal-Hub Lead Judgment Report
TINUADE AKOMOLAFE-WILSON, J.C.A.
This appeal is against the decisions of the Military Special Court Martial which sat at the Army Headquarters Garrison Magadishu Cantonment, Nigerian Army, Asokoro Abuja in respect of charge Number NA/COAS/GI/39: Nigerian Army vs. Major-General I. Sani presided over by AVM J. M. Gabum (NAF/1366) in respect of Rulings delivered on 11th July, 2016, 1st November, 2016, 25th April, 2017 and the final judgment on the 20th July, 2017 respectively. The Appellant was arraigned on a criminal charge, dated 1st July, 2017 signed by Lt.- General T. Y. Buratai (N/7630).
The charges range from Disobedience to Particular Orders contrary to and punishable under Section 56 (2) of the Armed Forces Act, cap A20 LFN 2004, offences in Relation to Public and Service Property punishable under Section 66 (a) of the Armed Forces Act, Making of False Documents contrary to section 90(a) of the Armed Forces Act, Cheating Punishable under Section 113 (a) of the Armed Forces Act, and Fraudulent dealing with property triable under section 114 of the Armed Forces Act and punishable under Section 177 of the Penal Code,
1
Cap page 89 LFN 2004. The charges are at pages 3919 to 3927 of volume 7 of the Record of Appeal.
The lower Special court Martial was also convened by the Chief of Army Staff vide a convening Order dated 27th April, 2016.
The trial commenced on the 4th of July, 2016 and the final Judgment was delivered on the 20th of July 2017. The judgment/finding of the lower Court martial are at pages 3865 – 3892 while the sentence is contained at pages 3894-3896 of Volume 8 of the Record of Appeal. Against the said rulings and judgment the Appellant first filed a Notice of Appeal containing thirteen grounds of appeal on 14th November, 2017 at pages 4874 – 4880 of the supplementary record. Appellant also filed a second Notice of Appeal dated 7th March, 2018, containing fourteen grounds of appeal, at pages 5047 – 5058 of the supplementary record. The Appellant’s Brief of Argument is based on the latter Notice of appeal dated 7th March 2018, containing fourteen (14) grounds of appeal.
?The Statement of facts as agreed by both parties is as follows:
The Appellant was until his arraignment a Major General in the Nigerian Army and the Chief of
2
Transformation and Innovation at the Army Headquarters. He was appointed “as the Defence Headquarters Liaison Officer to Ministry of Federal Capital Territory on Comprehensive Development of Asokoro (Annex) District on the basis of Land Swap vide a letter Reference No. CDS/13/Q dated 27th September, 2012 by the then Chief of Defence Staff, Air Chief Marshal Oluseyi O. Petinrin. The letter is pages 4067-4069 volume 9 f the Record of Appeal. The Appellant was also authorized by the then Chief of Army Staff Lieutenant General Kenneth T. I. Minimah to “conclude all land transactions as it affects the land utilization for the Nigerian Army and obtain certificate of occupancy for the Nigerian Army Garrison Barracks” by letter Ref No. NA/COAS/G4/67/1 dated 17th September 2014 titled “Authority to Conclude Asokoro Annex B Layout Cadastral Zone 04 Land Transaction Major General Ibrahim Sani.” The letter is at page 4066 of volume 9 of the Record of Appeal.
?Following the creation of Abuja as the Federal Capital Territory, in 1976 and the subsequent relocation of the Ministry of Defence from Lagos to Abuja in the early 1990s, it became necessary to allocate a
3
strategic large expanse of land to the Nigerian Armed Forces (i.e. the Army, Navy and Air Force) for the building of military barracks and administrative offices for its officers and men.
The Nigerian Army Guards Brigade was originally allocated Plot 1884 in Asokoro (A04) District, measuring approximately 688 hectares for use as Military Barracks under the title FG 2319 dated 16th July, 1996 by the FCT Administration. The present Mogadishu Cantonment was built on a portion of about 62.6 hectares, while the remaining 626 hectares remained undeveloped until sometime in 2012 when the attention of the FCT Administration was drawn to a resolution by the Armed Forces to share the undeveloped portion among the Nigeria Army, Nigeria Navy and the Nigeria Air Force. The undeveloped portion of land was processed, and subdivided into three (3) Plots numbered 5574, 5573 & 5469, measuring approximately 250.4 hectares, 156.5 hectares and 156.5 hectares to the Army, the Navy and the Air Force respectively. The map showing the sharing formula of the land amongst the three (3) armed services, admitted as Exhibit D 11 appears at pages 4275 ? 4276 of Volume 9 of the Record of Appeal.
4
The Nigerian Army initially opted to participate in the Land Swap Program with a Special Vehicle Plant (SVP) of consortium comprising HNL Consultants and Dantata Construction Company formed a Special Vehicle Plant (SVP) to co-ordinate the provision of infrastructure on the Nigerian Army Personnel Welfare Scheme. However, Dantata Construction Company withdrew after visiting the location of the land as a result of the rugged nature of the ground. Consequently, a new SVP was set up comprising HNL Consultants, KC Comment and MASSCON International and representatives from FCDA Survey and Planning, Urban and Regional Planning, Engineering Departments and Directorate of Compensation to only co- ordinate and supervise the layout, but give offer to all FCDA Land applicants and the immediate provision of infrastructure. The scheme was named Special Vehicle Plant Nigerian Army Welfare Scheme (SPV- NAWS). The portion of the welfare scheme land is Comprehensive Development with all the basic amenities for the benefit of serving and retired military personnel and other stakeholders.
?During the process of allocating the portion of land
5
earmarked for the welfare of the Nigerian Army personnel, the Trust News Paper of Wednesday, 4th June, 2014, made a publication alleging that Army Generals and their proxies were allocated land meant for Army Barracks at Asokoro, Abuja with pictures of current and former Service Chiefs. Consequently, it was decided by the Nigerian Army that the portion of land earmarked for the Welfare SPV- NAWS be separated from the barracks land for posterity and to prevent any future claim of misuse of Army Land. The Honourable Minister was requested to authorize the issuance of two separate C of O’s to Nigerian Army and SPV NAWS respectively.
By a letter dated 27th April, 2015 with Ref No: AHQ/ATIC/G4/100/56 (appearing on pages 4053- 4054 Volume 9 of the Record of Appeal), the Nigeria Army further requested for the subdivision of its own allocation over Plot 5574, measuring 436 hectares between the Nigeria Army and Special vehicle Plant Nigeria Army Welfare Scheme (SPV- NAWS). The Minister of the FCT magnanimously approved the subdivision as well as the extension of the Nigerian Army Personnel Welfare Scheme Plot from 436 hectares to approximately 516.56 hectares.
6
This informed the issuance of two separate Certificate of Occupancy (C. of O.) with Plot Numbers: 2302 and 2303, measuring 248.19 hectares and 268.37 hectares in favour of Nigeria Army (MISC 129132) and Special Vehicle Plant Nigeria Army Welfare Scheme (MISC 129911) respectively. The certified true copies of Right of Occupancy over Plots 2302 and 2303 are at pages 4241 and 4254 respectively of volume 9 of the record of appeal. See also the CTC of AGIS Data Base report showing similar schemes that Federal Capital Territory Development Authority (FCTDA) allocated plots for benefits of its members and staff at pages 4303 of volume 9 of the record of appeal.
By a letter from the Army Headquarters signed by Brigadier General H.I Momoh for the COAS dated 4th of September 2015 titled “OWNERSHIP CONFIRMATION OF PLOT NUMBERS 2302 AND 2303 WITH FILE NUMBERS 129132 RESPECTIVELY IN CADASTRAL ZONE A04 ASOKORO- ABUJA” appearing at page 4218 of volume 9 of the record, the CAOS requested for detailed information on the ownership of land. In letter of response from the FCTA dated 9th September 2015 titled “RE: OWNERSHIP CONFIRMATION OF PLOT NUMBERS 2302 AND 2303 WITH FILE
7
NUMBERS MISC 129132 AND MISC 1299911 RESPECTIVELY IN CADASTRAL ZONE A04 ASOKORO ABUJA” and admitted as Exhibit P22 letter, (appearing on Page 4216 of volume 9 of the record), the FCTA furnished the Respondent with a detailed historical facts about the creation and allocation of Plot 1884 Asokoro (A04) District, measuring approximately 688 hectares to the Nigerian Army: Guard Brigade was for Military Barracks under the title FG 2319 dated 16th July, 1996 by the FCT Administration. At paragraph three(3) of Exhibit P 22 (letter from Ministry of Federal Capital Territory Administration (MFCT/FCDA) on page 4216 of the record, MFCT/FCDA clearly stated that the Plot of land with number 2303 belongs to SPV-NAWS.
The Nigerian Army Property Ltd also wrote a letter to the Honourable Minister of FCT, requesting him to merge the Army Plot 2302 with the SPV-NA WS Plot 2303 vide a letter Reference No. NAPL/G4/100112/112 dated 2nd February, 2016 appearing on page 4298 of volume 4 of the record of appeal.
?The FCT Administration replied the Nigerian Army vide a letter dated 3rd March, 2017 Reference No. FCTAIDLA/GEN/17/17, appearing on pages 4301- 4302 of volume 9 of
8
the record, stated categorically that the request cannot be granted because Plot 2303 is different and belongs to the SPV- NAWS.
Notwithstanding the above position from the Ministry of Federal Capital Territory Administration (MFCT/FCDA), however, following the Report of the Investigation Committee convened by the Chief of : Army Staff (COAS) to verify Ownership of Nigerian Army Additional Portion of Land Behind Mogadishu Cantonment Asokoro, Abuja in Cadastral Zone A04, which appear on pages 4216-4217 of volume 9 of the Record of Appeal (Exhibit P.15 (DQ), the COAS subsequently directed that Plot No. 2303 and its Certificate of Occupancy be taken over by the Nigeria Army. Based on the Report of the Investigation Committee convened by the Chief of Army Staff (COAS) to verify Ownership of Nigerian Army Additional Portion of Land behind Mogadishu Cantonment Asokoro, Abuja in Cadastral Zone A04 and Exhibit P. 14(Q), the COAS, Lt. General T.Y Buratai convened the lower Court Martial and personally signed the charges against the Appellant.
?The Appellant was initially arraigned on the 4th of July, 2016 on a 9 count charge bordering on Service Property,
9
making of false documents and cheating punishable under Sections 56(2), 66(a), 90(a) and 113 (a) of the Armed Forces Act (AFA), CAP A20, LFN, 2004 respectively. Upon his arraignment, the Appellant pleaded not guilty to all the counts of the Charge Sheet. In the course of the arraignment, Count 9 was struck out for being duplicitous with Count No.3. At the close of the prosecution’s case, the Appellant made a no case submission in respect of all the remaining 8 counts. In a ruling on the No Case Submission, Count No.5 was later struck out for failure of the prosecution to establish a prima facie case linking the Appellant with the alleged act of cheating or unlawfully obtaining the sum of N15,0001000.00 (Fifteen Million Naira) from one Brigadier General Koko Essien. See page 1311 of volume 3 of the record.
In the course of the trial, the Appellant made interlocutory applications both orally and formally by Motion on Notice, challenging the jurisdiction of the Special Court Martial on the basis of contravention of Section 36 of the 1999 Constitution (as amended), the competence of the President and a member of the Special Court Martial and other issues
10
bordering on the right to fair hearing which the Special Court Martial consistently refused. At the proceedings of 11th July, 2016, Appellant raised the issue of likelihood of bias and denial of right to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) if his trial continued before the Special Court Martial convened by the Chief of Army Staff, Lt. Gen. T.Y Buratai (N/7630), but the Special Court Martial refused the application in its ruling. The ruling delivered on 11th July, 2016 refusing the Appellant’s Objection to the Convening of the Special Court Martial by Lt. General T.Y. Buratai is at pages 181- 188 of Volume 1 of the Record of Appeal.
Appellant also made a ‘No Case Submission’, at the conclusion of the Prosecution’s case which was dismissed by the Court Martial in its ruling delivered on 1st November, 2016 at pages 1310 – 1314 of the record. In yet another ruling of the Special Court Martial delivered on 25th April, 2017 appearing on pages 3277 – 3287 of the record, mid-way into the defence, the Court resorted to order the Appellant to frontload the evidence of all his witnesses but
11
refused Appellant’s application for Certified True Copy (CTC) of the said ruling.
At the proceedings of 20th July, 2017, appearing on pages 3797 – 3799 of Volume 8 of the Record of Appeal, the lower Special Court Martial, particularly the Judge Advocate dismissed the Appellant’s Motion on Notice dated 14th July, 2017, challenging its jurisdiction to try him by reason of the fact that two members of the Special Court Martial to wit: the President (AVM J.M. Gbum (NAF/1366)’ and a member A VM A.A. Iya (NAF/1429) were due for retirement and therefore, incompetent to sit as members of the Special Court Martial.
?The Special Court Martial in its judgment delivered on July 20th, 2017 found the Appellant guilty on Counts 3, 4, 6, 7 and 8 and sentenced him to a Reduction in Rank from Major General to Brigadier General but discharged him of the charges in counts 1 and 2. The Court also made a consequential Order of Restitution directing the Appellant to pay Seven Million Naira (N7,000,000.00) only to Col. O. Idoniboye-Obu, Ten Million Naira (10,000,000.00) only to Col. MO Ihanuwaze and Six Million Naira (N6,000,000.00) only to Col. OP Sintali on Counts 6,7 and
12
8 respectively. The Judgment and sentence of the Special Court Martial delivered on 20th July, 2017, convicting the Appellant of the offences in counts 3, 4, 6, 7 and 8 and discharging and acquitting him in respect of counts 5 and 9 is contained at pages 3865 – 3899 of Volume 8 of the Record of Appeal.
Subsequently, the Nigerian Army confirmed the judgment by a letter of confirmation, titled, “Third Army Council Decision for Implementation Maj Gen I Sani (N/7361)” dated 20th October, 2017; and another letter titled, “Third Army Council Decision for Implementation Major Gen I Sani (N/7361)” dated 17th November, 2017 by Major General Agugo, communicating the decision to relevant authorities of the Nigerian Army. The letter confirmed the finding of guilty sentences of reduction in rank of the Appellant from Major General to Brigadier General with 4 years seniority and consequential Orders of Restitution awarded against the Appellant on Counts 3, 4, 6, 7 and 8. The two letters of 20th October, 2017 and 17th November, 2017 appear at pages 4881-4881A and 4882 – 4883 of the record respectively. Immediately after the judgment and conviction of the Appellant, he
13
formally requested for a copy of the judgment together with the entire record of proceedings to enable him exercise his constitutional right of appeal. However, the Nigerian Army refused to release them until after eight (8) months when this Honourable Court ordered the Respondent to make same available.
?By a Notice of Appeal, dated and filed on 3rd March, 2018, the Appellant appealed against the Rulings of the Special Military Court Martial delivered on 11th July, 2016; 1st November, 2016; 25th April, 2017 and 20th July, 2017 respectively and the final judgment of 20th July, 2017. At the proceedings of this Honourable Court on 15th March, 2017, the Appellant’s Motion on Notice dated and filed on 3rd March, 2018, seeking for leave, extension of time and the consolidation of Rulings of the Special Military Court Martial delivered on 11th July, 2016; 1st November, 2016; 25th April, 2017 and 20th July, 2017 respectively with substantive appeal against the final judgment delivered on 20th July, 2017 was heard and granted.
?It is the contention of the Appellant that apart from the issue of lack of jurisdiction, in some aspect of the rulings, the lower
14
Court infringed on Appellant’s right to fair hearing and also contradicted itself on material particulars.
ISSUES FOR DETERMINATION
In the Appellant’s brief of argument filed by S. O. Magando Esq. six issues were distilled for determination from the fourteen grounds of appeal as follows:
ISSUE ONE
“Whether the Special Court Martial (SCM) was validly constituted regarding the qualification of its members in the manner prescribed by Sections 131,133,136 and 137 of the Armed Forces Act, CAP A20 ‘Laws of the Federation of Nigeria, 2004 read in conjunction with paragraph 02.10 (B-E) of the Armed Forces of Nigeria Harmonized Terms and Conditions of Service for Officers, 2012 and Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) so as to vest it with the requisite jurisdiction and or competence to try the Appellant. (distilled from Ground 4).”
ISSUE TWO
“Whether the Appellant’s constitutional rights to fair hearing guaranteed in section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Principles of natural Justice were not breached having- regards to the general
15
circumstances and facts of the case and the procedure adopted in the entire trial. (Distilled from Grounds 1,2,3 and 8).”
ISSUE THREE
“Whether the entire trial, confirmation and promulgation of the sentence of the Appellant was proper and did not breach the Appellant’s constitutional right to fair hearing and extant laws, particularly Sections 9, 11 and 152 (b) of the Armed Forces Act, CAP A20 Laws of the Federation of Nigeria, 2004. (Distilled from Ground 13).”
ISSUE FOUR
“In view of the provisions of section 39 of the Land Use Act and sections 129 (b) and 130 of the Armed Forces Act, whether the lower Special Court Martial has the jurisdiction to determine the title or ownership of the parcel of lands with Plot Nos. 2302 and 2303 at Asokoro Anex B, Cadastral Zone A, 04, Abuja in favour of the Nigerian Army. (Distilled from Ground 12).”
ISSUE FIVE
“Whether in the light of the oral and documentary evidence before the Special Court Martial, the Prosecution proved its case against the Appellant beyond reasonable doubt and the findings of the Special Court Martial is supported by evidence adduced at the trial. (Distilled from Grounds
16
7, 9, 10,11 and 14).”
ISSUE SIX
“Whether the Special Court Martial was not in breach of Section 137 of the Armed Forces Act, CAP A20 Laws of the Federation of Nigeria, 2004 when the President and one other member whose qualification and competence to sit as members of the Special Military Court Martial was being challenged sat and heard the application and retired into the chambers for the ruling on the application. (Distilled from Grounds 5 and 6).”
On his part, Eloka J. Okoye of learned counsel to the Respondent condensed the issues for determination into two but raised sub-issues along the line of the Appellant’s submissions: –
“a. Whether the fundamental right to fair hearing of the Appellant has been breached?
b. Whether the employment of AVM 3. M. GBUM (NAF/1366) AVM A.A. IYA (NAF/1429); President and Member of the Special Court Martial with the respondent can unilaterally be determined without recourse to the enabling law.”
?I have considered all the issues raised for determination by the parties. It is clear that the issue of breach of fair hearing is one of the major grouses of the Appellant in this appeal. The
17
Appellant canvassed this issue under issues 2 and 3 of his brief of argument and this covered seven grounds; 1, 2, 3, 8, 9, 10 and 13, out of the thirteen grounds of appeal filed by the Appellant. The Respondent on its part, made it the first issue from the two issues distilled for determination.
I adopt the Respondent’s concise issues for the determination of this appeal. Respondent’s issue one addresses Appellant’s issue 3 and 4 while issue two is a response to Appellant’s issues i, iv, and vi of the Appellant’s brief at pages 5 ? 17 of his brief of argument.
ISSUE ONE
“Whether the fundamental right of the Appellant has been breached?”
The Appellant’s contention of this issue argued in his issues 2 and 3 is that the conduct of his trial, conviction, sentence and confirmation of sentence/conviction are all in violation of his fundamental right of fair hearing. The Appellant complained that the establishment and the constitution of the Court martial that tried him was in a manner that did not secure its independence and impartiality ?FRN vs. Akubueze (2010) 17 NWLR (Pt 1223) 523 at 240. He noted that the Chief of Army Staff,
18
Lt. General T. Y. Buratai (N/7630) who convened the martial Court, signed the charge and was part of the confirming authority, was a beneficiary allottee of the land allocated by SPV ? NAWS, the subject-matter of which the Appellant was arraigned whereas by the provisions of Section 131 of the Armed Force Act there were other persons who could convene a special Court martial. The twin pillars of justice, namely Audi alteral partern and Nemo judet in causa sua were breached –
Mohammed vs Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485, Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 421, Saleh vs. Monguno (2003) 1 NWLR (Pt. 801) 221 at 246.
It was also argued that the letters of confirmation of his conviction and sentence signed on behalf of the Chief of Army State Brigadier ? General Shalagwa and Brigadier General Apugo are not members of the Army Council with the requisite powers, by virtue of Sections 9, 11 (b) and 151 (6) and 152(1) (b) and (c) of the Armed Forces Act, to sign or issue letters communicating the decision of the Army Council and that the purported delegation of power to them was not gazetted as required by law. Learned
19
Counsel also argued, forcefully, that he was not afforded adequate opportunity, like the prosecution to defend himself.
In response, it was argued that the Chief of Army Staff, Lt. General T. Y. Buratai, being a statutory authority, simply acted in the discharge of his statutory duties and nothing more and that his position, particularly, being a beneficiary cannot and would not have impaired any form of impartially or injustice whatsoever against his benefactor and none was shown to have been manifested, thereby making the allegation speculative. Reliance was placed on Adisa vs. The State (1991) 1 NWLR (Pt. 168) 490 at 500, Denge vs. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 234.
?On whether the entire trial and confirmation was a violation of the Appellant’s right of fair hearing, the Respondent submitted that the facts presented in support of the argument in paragraphs 8.55 to 5.94 of the Appellant’s brief are fresh and novel issues upon which the leave is required, and therefore should be discountenanced. With regard to whether the action of the Special Court Martial (SMC) in force-closing the Appellant after the Appellant severally failed to go
20
ahead with the case amounts to breach of fair hearing, it was submitted that the Appellant cannot complain of lack of fair hearing because a Court/tribunal has the requisite powers to order a direction one way or the other as to the just determination of cases brought before it for adjudication and such orders must be obeyed by all parties, citing the cases of Barrister Orker Jev vs. Sekav D. Iyortyom (2014) LPELR ? 23000 and Rossek vs. ACB (1993) 8 NWLR (Pt. 312) 382.
Let me commence with the issue of breach of fair hearing canvassed by the parties particularly the contention that the Appellant was not afforded the opportunity to conduct his case in accordance with tenets and principles of fair hearing. It is the contention of the Appellant’s learned counsel that the procedure adopted by the special Court tribunal throughout the trial of the Appellant violated Section 36(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Appellant has complained that the special Court tribunal suo muto foreclosed the case of the Appellant and disallowed him from calling the witness in the list submitted to the Tribunal
21
for him to prove his case. It is the strong contention of the Appellant that the Special Court Martial granted the Respondent ample opportunity to present its evidence through its witnesses whereas the Court became impatient when the Appellant was conducting his defence. Reference was made to the Ruling of the Court delivered on 25th April, 2017, which in the mid-way into his defence, the Court ordered him to front-load the evidence of his remaining witnesses and thereby interfered with the Appellant’s fair hearing on the ground of prescribing different conditions regarding procedure as opposed to those that applied to the witnesses called by the prosecution (Pages 3277 ? 3280, 3284 vol. 7 of the record of appeal). He noted that the defence counsel promptly submitted that the order of the court negated the principle of fair hearing and immediately applied for the Certified True Copy of the Ruling, but the Prosecution Counsel and the Judge Advocate opposed his application whereupon the President of the Special Court Martial ordered the front loading of his remaining 61 witnesses by the next adjourned date (page 3287, vol. 7 of the record of appeal).<br< p=””
</br<
22
In response to the Appellants contention relying on Diamond Bank Plc. & Ors. v. Slimpot Nigeria Limited (2016) LPELR ? 41612 (CA), it was forcefully submitted that in determining whether the principle of fair hearing has seen breached, what an appellate Court is to consider is whether a party entitled to be heard before a judgment is entered had in fact been given such an opportunity of being heard. According to learned counsel to the Respondent, the Appellant was given ample opportunity to defend himself and cannot complain of lack of fair hearing when he voluntarily aborted every opportunity and privilege given to him to state his case or being heard in accordance with the rules of procedure of Court or tribunal.Learned counsel referred to pages 97-135. Pages 97 -135, 3919 -3972, Vol. 7, pages 3809, vol. 8, the extract on the Judge Advocate’s sum up particularly at pages 3804, vol. 8, 3805-3749, vol. 8, vol. 8 pages 3703-3749, vol. 8 and pages 3751, vol. 8 of the Record of Appeal where the entire antics of the Appellant during the matter at the SCM were recorded and where according to him, it was clearly shown that the Appellant refused to
23
take the chance given to him to state his case at the lower SCM.
It is the contention of the Respondent that the Appellant waived his right to appropriately conduct his case emphasizing that an opportunity to be heard does not mean that a party must be heard at all cost. This Court was referred to the case of Newswatch Communications Limited vs. Atta (2006) 12 NWLR (Pt. 993) 144 where the Supreme Court admonished counsel on the wrongful resort to the principle of fair hearing, which must not be used as a magic ward to cure all inadequacies of the trial. He further cited Alade vs. Alic (Nig.) Limited (2010) 19 NWLR (Pt 1226) 11 at p 131 paragraphs A-D to contend that a party like the Appellant should not benefit from his own wrong.
The law is trite that the principle of fair hearing is paramount to proper adjudication of cases by the Court or Tribunal. It is a constitutional right that is entrenched in Section 36 of the 1999 constitution. The principle of fair hearing is so fundamental in any matter that its absence vitiates any proceeding, no matter how well conducted. Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended)
24
provides thus:
“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 manner as to secure its independence and impartiality.”
The Constitution, the grund norm of the existence of this country itself places heavy emphasis on the observance of fair hearing and particularly by Section 36(6) and (7) of the constitution for criminal matters, which provides as follows:-
“36(6) Every person who is charged with a criminal offence shall be entitled to ?
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as
25
those applying to the witnesses called by the prosecution; and
(7) When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case
Again, Section 294 (1) of the 1999 Constitution states thus:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
?Fair hearing means a fair trial, one conducted in accordance with all legal rules to ensure that justice is done to both parties. Fair hearing entails parties being given adequate opportunity to effectively conduct their cases without any encumbrance. This is more so for an accused person like the Appellant, who ought to be given the opportunity to conduct his defence as effectively as he proposes. It is emphasized
26
that the constitutional provision for fair hearing under section 36 of the 1999 constitution, is not one of technical doctrine but one of substance and cannot be ignored. Consequently, an accused person must not be deprived the opportunity to call necessary witnesses in defence of crimes for which is charged. ? Josiah vs. State (1985) 1 NWLR (Pt.1) 125, Ezenwankwo vs. State (2015)2 NWLR (Pt. 1443) 265 at 284 ? 285, Ogunsanya vs. State (2011) 12 NWLR (Pt 1261) 401, State vs. Ajie (2000) LPELR 3211 (SC), Famoroti vs. FRN (2015) LPELR 40885 (CA).
I am not oblivious of the fact that the application of the principle of fair hearing is double edged. In other words, fair hearing must satisfy a double carriage-way for all parties. In criminal cases, it implies fairness not only to the defence, but also to the prosecution. A case ought not to linger in Court for ends and no Court will accommodate any party to play antics to delay the due and quick determination of matters before it. I am conscious of the fact that a Judge is the master of his Court and has the requisite powers to order or give direction in accordance with the law and litigation procedural rules
27
for the just determination of cases brought before it for adjudication.
I am also conscious of the established principle of law that a party who was given opportunity to present his case but for whatever reason failed to avail himself of that opportunity has waived his right to complain ?Effiom vs. State(1995) 1 NWLR (Pt. 373) 507, Uguru vs. State (2002) 9 NWLR (Pt. 771) 90.
However, the pertinent question to be asked is whether in the circumstance of this case, the Appellant failed to avail himself the ample opportunity the Respondent claimed to have accorded the Appellant to effectively conduct his case, including calling all necessary witnesses. I have examined the proceedings at pages 97-135, 3919-3972, vol. 8, pages 3703- 3749, 3748-3749, 3775 vol. 8 of the record of appeal relied upon by the Respondent to justify the reason why the special court martial made its Order of 13/6/2017 to foreclose the Appellant from calling his remaining witnesses. I have also considered the proceedings spanning through pages 3277 -3280, 3284 to 3287 volume 7 of the record of appeal. In my view, it is not in doubt that the Appellant never aborted the
28
opportunity accorded him to defend himself. It was while he was conducting his defence, after he had called 16 witnesses that the Special Martial Court ordered front loading of his remaining 61 witnesses at the next adjourned date. The defence counsel immediately complained about this procedure and urged the Court to avail him the Certified True Copy of the Order of the Court so as to convince the witnesses to swear on Oath for their statements. The application was refused.
It is noted that the defence counsel later complained that there was no Commissioner for Oath in the Special Martial Court hence, he could not promptly comply with the Order of Court. On the subsequent adjourned date, the Appellant front loaded eight witnesses who adopted their Witnesses Statements on Oath and further pleaded for more time to file the Witnesses Statements on Oath of the remaining witnesses. The Special Court Martial however declined his application and his further defence was immediately foreclosed.
?A complaint predicated on fair hearing is an invitation of the appellate Court to consider whether or not the Court upon which the complaint is made has been generally
29
equally fair to all the parties before it.
Now having briefly examined the proceedings at the Special Martial Court, the next important question to be considered is whether the Court was fair to the Appellant.
It is trite that the true test of fair hearing is an objective test based on the impression of a reasonable person who was present in the Court of trial, on whether from his observation, justice was done in the case ?Ogunsanya vs. State (2011) 12 NWLR (Pt. 1261) 401, Baba vs. NCAT (1991) 5 NWLR (Pt. 192) 388, Ijeoma vs. State (1990) 6 NWLR (Pt. 233) 17, Okafor vs. A.G Anambra State (1991) 6 NWLR (Pt. 200) 659. Ezenwankwo vs. State (2015) 2 NWLR (Pt. 1444) 267 at pages 284-285.
The crucial determinant of fair hearing is the necessity to afford the parties equal opportunity to conduct their cases before the court. See Zakari vs. Nigerian Army (2012) LPELR 9246 (CA) The Supreme Court inUdo vs. State (1988) I NSCC (Pt.19) 163 at 1172 declared that Section 33(6)(d) of the 1979 Constitution (which is in pari materia with Section 36(6)(d) of the 1999 Constitution) is a provision of “equal opportunities for both the prosecution and the defence……”
30
In her contributory judgment in the cited case of Okoye vs. COP (2015) 17 NWLR (Pt. 1488) 276 at 296, Odili JSC aptly stated thusly:
“My understanding of those clear words of Section 36 (6) (b), which has no ambiguity in them, is that the provision has no time frame, conditions, circumstances or situations within which or under which the adequate facilities’ should be afforded the person charged with a crime. Also it stated ‘every person,’ not a particular ground of person who is charged.
Another way of placing the situation is that there must not be a procedural inequality or unfairness in any trial and there has to be ensured that one of the parties is not put at a disadvantage; and so whatever information concerning the case for which the accused stands on trial, that information should be made available to accused without stint as the prosecutor is not allowed the sole access to evidence which he obtained by public fund and use it as a sledge hammer on a hapless accused person who has no reach to such power. Thus, all door must be left open and unlocked for the truth to be display as anything to contrary impinges on the right to fair
31
hearing of the accused.
See Section 36(6) of the Constitution; Kenon vs. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41. The duty of a Judge or an Adjudicator to equally hear both sides of a dispute is therefore paramount. The Court must afford both parties the opportunity to call all necessary witnesses so as to ventilate their cases in Court because the witnesses speak on behalf of the respective parties. In the instant case, the prosecutor was afforded the opportunity to adequately conduct its case, unfettered. All their witnesses were allowed to testify undisturbed. However, as already shown above; that was not the situation with the Respondent, the Appellant herein. In criminal cases, premium must be given to an accused person to effectively conduct his defence without undue haste by the Court. It is true that adjudication of cases in special Court martial envisages quick dispensation of justice. However, it is instructive to emphasize that quick dispensation of cases must not be sacrificed at the altar of justice. The Special Court Martial ought to have been patient enough to allow the Appellant to get all the witness listed by the
32
defence to file their witnesses’ statement oath. On the filing of such statements, the Court would then be in a position to direct the conduct of the case and determine whether the evidence of the witnesses is merely repetitive. Equal opportunities must be afforded all parties to fully conduct their cases in Court. In the instant case, any reasonable independent observer would have come to the conclusion that the Appellant was not accorded adequate fair hearing.
?I am of the fervent view that, irrespective of the circumstances of alleged antics of the Appellant in the proceedings referred to by the Respondent, the Special Court Martial ought to have granted the adjournment to allow the Appellant bring his witnesses to Court. In my avowed view, the failure of the Court Martial Tribunal to allow the Appellant call all his witnesses, and the decision to foreclose the case of the Appellant after the Appellant had submitted his intended list of witnesses was in clear breach of the Appellant’s right of fair hearing. The Special Court Martial was in error to have deprived the Appellant the opportunity to call his listed witnesses in his defence.
33
The right to fair hearing lies at the heart of adjudication; therefore a finding that a patty was denied fair hearing nullifies an entire proceedings, including the decision arising therefrom. I hereby declare the entire proceedings, including the judgment which convicted the Appellant; null and void. Where a Court declares a proceeding a nullity, the appropriate order to be made by an appellate Court is for a hearing de novo. See Okafor vs A.G, Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678, Omokuwajo vs. FRN (2013 9 NWLR (Pt. 1359) 300 at 340, Ariori Vugor vs. State (2014) 2 NWLR (Pt. 1390) 196 at 207, Josiah vs. State (1985) 1 NWLR (Pt. 1) 125, In the circumstances, I hereby set aside the proceedings and judgment of Special Court Martial in respect of charge No. NA/COAS/G1/39 filed before the lower Special Court Martial. In view of the circumstances of this case, bearing in mind the evidence adduced against the Appellant, the interest of justice, demands a re-trial of the Appellant.
?Consequently, I hereby make an order for re-trial of the charges against the Appellant by another Special Court Martial.
?Now, having ordered a re-trial, it will be unnecessary
34
to determine the merits of this appeal as this will be prejudicial to the determination of the re-trial of the case.
Other Citations: (2009)LCN/3207(CA)
