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.
Particulars of Error
(a) The legal effect of an amendment of and/or substitution of new charges on 6th August, 1996 is as if the accused has been standing the, trial on the amended or substituted charges with effect from 26th Jury, 1996.
(b) Where, as in the instant case, the charges on the old count and those in the amended/substituted charges are the same, or where additional charges are added on to the existing charges, the jurisdiction of the Court Martial should not be affected in the manner suggested by the Court of Appeal.”
It is no doubt the position in adjectival law that were a notice of appeal is adjudged to be incompetent, for instance because it contains no valid ground of appeal, such notice of appeal cannot be amended either by an application seeking to amend those grounds or to file additional grounds of appeal. Such incompetence means that there does not in law exist a notice of appeal to which an amendment could be effected or on to which additional grounds of appeal may be grafted. The incompetent notice of appeal will be struck out: See Atuyeye V. Ashamu (1987) 1 NWLR (Pt. 49) 267; Nsirim V. Nsirim (1990) 3 NWLR (Pt. 138) 285; Global Transport Ocenico S.A. V. The Owners of the M/V “Kapetan Leonidas” (2001) 5 NWLR (Pt.706) 426; (2001) 3 SCM 35.
But Professor Adesanya did not quite demonstrate how he thought these grounds to be of mixed law and fact. What he argued, as I can recall, is, that because the word “evidence” was mentioned in me particulars of error of the first ground of appeal, that was an indication that an element of fact was involved. Miss Lewis countered that submission by saying that there was no question of any disputed fact since the evidence of due delegation by the appropriate officer was relied on by both sides for the respective contentions they advanced before the court. I think Miss Lewis is right. The focus of the particulars of error in the said ground one was the propriety of delegating certain powers under section 131(2) of the Armed Forces Decree and whether there was evidence of such delegation.
There was no dispute as to such act of delegation. In other words, there was evidence of delegation. What was therefore left to be argued under that ground of appeal was whether such delegation was permitted by law and whether the Court of Appeal came to a right decision on that issue. That was clearly a ground of law alone: See Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718. On reading the two grounds of appeal, I have not the slightest doubt that they are both of law alone. The original notice of appeal was certainly valid and was duly amended the way it was dope. I must hold that the first two grounds stated earlier on which were relied on and argued by Professor Adesanya have not been shown to have merit.
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As regards the third ground, Professor Adesanya relies on the observation I made at page 433 of my ruling in the case of The Nigerian Air Force V. Shekete (supra) thus:
“A reading together of sections 183, 187 and 202 of the Armed Forces Decrees No. 105 of 1993 (as amended), leaves me in no doubt that there is a right of appeal by either party to a Court-Martial proceeding at every stage right to the Supreme Court albeit with leave except that it is as of right in any decision involving a of death.”
Professor Adesanya has taken the phrase “albeit with leave” to mean that the observation acknowledges that a right of appeal in Court-Martial proceeding from the Court of Appeal to the Supreme Court must be with leave. I concede that in the context it was used, that meaning was inevitable. However, I like to begin by saying, as Miss Lewis well appreciated in her submission, that what gave rise to that observation was one of the grounds Of the preliminary objection raised to the competence of the appeal filed by the Nigerian Air Force, which ground was framed thus –
“that there is no right of appeal conferred on the appellant/respondent and/or the Attorney-General of the Federation either by statute or Constitution in respect of matters relating to a trial by a Court-Martial.”
The ordinary run of my observation quoted above in reference to the said ground that was being considered was mat such a right existed having regard to sections 183, 187, 190 and 202 of the Armed Forces Decree 1993 which read:
“183. Subject to the following provisions of this part, an appeal shall lie from decisions of a Court-Martial to the Court of Appeal with the leave of the Court of Appeal:
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Provided that an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a Court-Martial involving a sentence of death.
The determination by the Court of Appeal of any appeal or other matter which it has power to determine, under the provisions of this part of this Decree shall not be final.
It shall be the duty of the Attorney-General of the Federation on an appeal against a decision of & Court-Martial to undertake the defence of the appeal.”
Subject to the provisions of this Decree, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court of Nigeria.”
What has made a difference is the controversial and inappropriate placement of the phrase “albeit with leave” in the position it was in that observation.
Miss Lewis first argued that the observation I made amounted to a dissenting judgment on the point; but later said it was obiter. I do not think it was either. It does not qualify as an Obiter dictum because it was a pronouncement considered necessary for the decision of an issue raise before the court, namely, whether the Attorney-General (or the Nigerian Air Force) had a right of appeal in Court-Martial cases. It said mere was such a right. It was also not a dissenting view from what was expressed in the leading ruling of Ogundare, JSC at pages 430-431 as follows:
“With the provisions of the above sections of the Decree and the Constitution as they stand I can find no merit whatsoever in the arguments advanced in support of this ground for the preliminary objection. It is beyond dispute that the NAF was a party (respondent) to the proceedings before the Court of Appeal. In my respectful view any party to the proceedings who was aggrieved by the decision of that court could exercise the right of appeal to this court as conferred by section 202 of me Decree. In any event, section 233(2), (3) and (5) of the Constitution empowers the NAF to bring an appeal, being dissatisfied with the judgment of the Court of Appeal.”
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As it relates to the right of appeal of the Attorney-General or the Nigeria Air Force, I think we were at one.
But I am afraid that my observation in question was stated in a way that appeared to overlook the relevant provisions of section 233 of the 1999 Constitution which deal with appeals from the Court of Appeal to the Supreme Court and, therefore, upon a proper understanding, it would fall to be regarded as per incuriam. This is because it naturally would be taken to have been said in forgetfulness of the said section 233. I would like here to refer to Morelle Ltd. V. Wakeling 19551 All ER 708 at 718 where Sir Raymond Evershed
“As a general rule the only cases in which decision should beheld to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrable wrong.”
In this connection, what I had said was, on the face of it, inconsistent with the relevant provisions of section 233 of the 1999 Constitution. It must certainly be emphasized that no matter from which court or tribunal a case originated, once it gets to the Court of Appeal and is appealable therefrom sectioa233 of the 1999 Constitution applies. That section prescribes for instances of appeal as of right and appeal with leave of the Court of Appeal or the Supreme Court. My observation would, in my view, have been considered to be within measure if it had been put, as I probably meant to do, thus:
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“A reading together of sections 183, 187 and 202 of the Armed Forces Decree. No, 105 of 1993 (as amended), leaves me in no doubt that there is a right of appeal by either party to a Court-Martial proceeding at every stage right to the Supreme Court albeit with leave [to the Court of Appeal] except that it is as of right in any decision involving a sentence of death.”
Professor Adesanya might not have been dissuaded from pursuing his application even if my observation had been as above stated because his argument which he put quite forcefully was that if leave was required to appeal in. Court Martial cases in relevant situations to the Court of Appeal, then a fortiori it would be required to appeal to the Supreme Court. The argument, with due respect, is non sequitur and I am not persuaded by it, first, because it overlooks the fact that Decree No. 103 of 1993 which provided for a right of appeal from Court-Martial decisions to the Court of Appeal specifically made it a condition that it must be with leave except that it is as of right in any decision involving a sentence of death; and second, the argument fails to take account of the provisions of section 233 of the 1999 Constitution which alone determine how appeals can go from the Court of Appeal to the Supreme Court. The third ground celled on for the motion appears to me not tenable and I accordingly reject it.
Before I conclude this ruling, I think it is necessary to say that the nature of the motion, filed by the applicant and the time it was brought must be seen to be unavailing in the circumstances.
The grounds of appeal now sought to be declared incompetent were conceded, even if by acquiescence, by the applicant’s counsel at the time the appeal in question was argued. This court saw nothing wrong with them. It must be assumed rightly or wrongly that it considered their competence and held them valid. On that basis, the appeal was heard and determined. I am of the view that no application urging upon this court to revisit its judgment given on the score of the grounds of appeal considered by it to reach that judgment can succeed. This is so even if it can be shown that this court reached that decision, or regarded the grounds of appeal to be valid, in error.
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The case cannot be reopened because once this court decides or acquiesces on the competence of a notice of appeal, the issue of jurisdiction on the basis that the notice of appeal was indeed incompetent ought not to be permitted to be raised subsequently. The infallibility of this court is founded on its being the final court and not that it is final because it is infallible. In Ancon V. Fassassi (No.4) (1987) 3 NWLR (Pt.59) 42, this court was confronted with a similar situation as this at page 46, Eso, JSC who gave the leading ruling, said inter alia:
“In the Supreme Court, the decision of that Court in so far as that case is concerned is final for all ages. As I said in the Adigun No. 2 case, it is final in the sense of real finality. It is final for ever. Only a legislation ad hominen can alter it.”
It would not matter whether the error complained of is procedural or it goes to jurisdiction. And as Karibi Whyte, JSC said in the same case.
“The jurisdiction vested in the Court to hear and determine a matter before it is different from the exercise of power with respect to a matter within its jurisdiction…”
What learned counsel is asking us to do is to review our judgment which we gave yesterday, on the ground that this Court has no jurisdiction to make the order. This is the sort of matter that comes before a Court of Appeal as a ground of appeal. There is no Court of Appeal above the Supreme Court and the order stands for ever.”
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That seems to be the position now. In the result, I have to say that the motion under consideration would be liable stricto jure to be disposed of in limine. But I will emphasise that the jurisdiction complained of by the applicant does not relate to the jurisdiction vested in this court by the Constitution or by a relevant Act to hear and determine a matter coming before it. It is on the exercise of power with respect to a matter within its jurisdiction. Karibi-Whyte, JSC rightly made that distinction, in Adigun V. Attorney-General Oyo State (1987) 1 NWLR (Pt.53) 678. That distinction could be crucial because in the former one, this court would not have Jurisdictional authority to entertain the matter at all; Whereas in the latter there is authority to do so but there might have been procedural default as to jurisdiction such as the one the applicant raised in this case) over which this court would, in the light of Eso, JSC’s pronounce-ment, have taken an irreversible decision.
Perhaps it is pertinent to say that apart from a possible recourse to a legislation ad homenen where no Jurisdiction exists’ at all to decide a matter, it must not be forgotten that the inherent jurisdiction of the court to set aside ex debito justitiae its decision reached in such a situation, being a clear case of nullity, exists: See Obimonure V. Erinosho (1966) 1 All NLR 250 at 252; Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt.109) 250 at 273. It follows, in my view, that the decision in ARCON V. Fassassi (supra), as to its effect and limit, is open to be reconsidered or revisited in an appropriate situation by a full court.
Having regard to what I have said in this ruling, I must come to the conclusion that there is no merit in this application.’ Accordingly I dismiss it.
SC. 361/2001
