Ex. Sqn. Ldr. N.h. Obiosa V Nigerian Air Force (2004)

LAWGLOBAL HUB Lead Judgment Report

S.O. UWAIFO, JSC

The applicant was charged before the Algerian Air Force General Court Marital on a 14-count charge. On 21st October, 1996, he was convicted on all count and was sentenced accordingly. He appealed to the Court of Appeal which on 28 September, 2002 allowed the appeal on all counts and entered a verdict of discharge and Acquittal. The Nigerian Air Force then appealed to this court. It filed two grounds of appeal in the original notice of appeal on 30th October, 2000. That notice was later amended with the leave of this court given on 3 July, 2002 whereby additional grounds of appeal were filed/On 31 January, 2003 this court in SC:361/200l: The Nigerian Air Forde V. Ex. Sqn. Ldr A. Obiosa, (now reported as (2003) 3 SCM 113 gave judgment allowing the appeal partially. All the convictions recorded against the respondent (now the applicant) in that appeal were set aside but the order of restitution made against him by the General Court Martial to pay the sum of N137,750,000.00 was affirmed.

The said respondent has now come as Applicant before this court by a motion on notice filed on 5 February, 2004 seeking to set aside the judgment of this court which confirmed the order of restitution of N137,750,000.00 made against him. The motion on notice indicates that this court lacked the jurisdiction to entertain the appeal. The grounds relied on for that contention as stated on the motion paper by the applicant may be paraphrased thus:

The two original grounds of appeal relied on in the appeal leading to that judgment were grounds of mixed law and fact which required leave of court but which leave was not sought and obtained. Therefore the original notice of appeal filed against the judgment of the Court of Appeal was incompetent and could not be amended as the appellant therein purported to do.

As a result, this court by virtue of section 233(3) of the 1999 Constitution lacked the jurisdiction to entertain the appeal, there being no valid notice of appeal.

Over and above the foregoing, in view of the decision of this court in Nigeria Air Force V. Shekeie (2002) 14 NWLR (Pt.787) 419; (2002) 12 SCM 133 with particular reference to the observation at page 433, every appeal to this court by either party in a General Court Martial case requires leave whether or not the grounds of appeal are on law alone, except in case of a sentence of death where appeal is as of right.

The argument of Professor Adesanya, SAN in regard to grounds 1 and 2 as stated above is mat those two original grounds were of mixed law and fact. That being so, it was necessary to obtain leave of the Court of Appeal or this court to file them. Leave was not obtained. He argues that the further steps taken to amend the notice of appeal in which additional grounds of appeal were filed with the leave of this court was an exercise in futility since the original notice of appeal regarded by him as incompetent, could riot be amended.

In reply, Miss Lewis drew this court’s attention to the two original grounds of appeal and submitted that they were both of law alone.

That being so, she added, the notice of appeal was valid and was duly amended as appropriate.

For the sake of completeness, I shall reproduce the two original grounds of appeal as follows:

“1. The Learned Justices of the Court of Appeal erred in law in declaring the trial before the Court Martial a nullity on the ground that the person who convened the Court Martial does not fall within the list of persons so authorised under section 131(2) of the Armed Forces Decree No. 105 of 1993 and that there is no power vested in the persons so listed to delegate their powers to anyone.

Particulars of Error

Section 131(3) of the Armed Forces Decree No. 105 allows for delegation of the power vested in the persons in section 131(2) and there was evidence before the Court of due delegation of this duty to the official who convened the Court Martial.

The learned Justices of the Court of Appeal erred in law in declaring the trial of the respondent before the Court Martial a nullity on the ground that, although the Court Martial had jurisdiction to try the accused when he was arraigned before the Court on 26th July, 1996, (a date falling within the period within which the respondent was still subject to Military Law), the Court no longer had Jurisdiction when on 6th August, 1996 the old charges were struck out consequent upon an application by the Prosecutor to substitute new charges, which application was duly granted as the date of the substituted charge fell outside the statutory period within which the respondent was subject to Military Law.