Lieutenant Patrick D. Dodo V. The Nigerian Army & Anor (2007)
LawGlobal-Hub Lead Judgment Report
RAPAEL CHIKWE AGBO, J.C.A.
The appellant, Patrick D. Dodo, then a Lieutenant in the Nigerian Army, was arraigned before a general Court Martial and charged as follows: “CHARGES AGAINST LT DP DODO (N/10088) Lt DP Dodo (N/10088) being a person subject to service law is Charged with:
a. Civil offence to wit conspiracy to wit conspiracy to steal contrary to section 516 of criminal code act and punishable under section 114 A FD of 1993 (as amended). In that he at DMP/NAFRC in May 1998 connived with others to steal N8.9million property of Federal Government of Nigeria.
b. Offence in relation to stealing, contrary to and punishable under section 66 (a) of AFD 105 1993 (as amended). In that he at DMP/NAFRC in May 1998 stole the sum of N8.9million being the property of Federal Government of Nigeria.
c. Making of false documents, punishable under section 90(A) of AFD 105 1998 (as amended). In that he, at DMP/NAFRC in May 1998 connived with others to illegally include 53 fake ex-trainees in a pay schedule, thereby defrauding the Federal Government of Nigeria with N8.9million.”
He was tried along with three other officers. The General Court Martial was composed of the following members:
“a. President: Brig Gen RT Adoba (N/3002) DOAA
b. Members:
- Col JA Iyodo (N3421) – AHQ DOAA
- Col DD Oyebanjo (N5558) – AHQ DAOPS
- Col W. Old (N/5533) HQ LGC
- Col EB Ojima (N/27 19) – DOAL
c. Waiting Members (1) Col BT Ako (N/5567) – DARR/R
(2) Col DF Osho (N/5778) – NABHY
d. Judge Advocates: Lt Col AQ Abubakar (N6728) – NAMP.”
After the trial which included a trial within trial, the appellant was convicted on all the counts on 8 September 1999. Not being satisfied with his conviction, the appellant has filed this appeal on the grounds set out below:
GROUND 1
Error in Law.
The General Court Martial erred in law and therefore misdirected itself when it failed and or neglected to observe the constitutional rights of the appellant to fair hearing.
Particulars
a. The court exhibited bias against the appellant from the beginning to the end of the trial by disregarding all evidence favourable to the appellant.
b. The court angrily sentenced the appellant to 7 years imprisonment on charge one for an offence which statutorily carries a maximum of 2 years imprisonment both under section 516 of the criminal code Act and section 66 (a) of the Armed Forces Decree 1993.
c. The court similarly sentence the appellant angrily 7 years imprisonment on charge 3 which carries a statutory maximum of 2 years imprisonment under section 90 (a) of the Armed Forces Decree 1993.
d. The judge advocate was a military Police Officer from the same office, which investigated the case contrary to the provisions of the Manual Military Law.
e. The judge advocate’s advice to the court to the effect that the rule of law has no place in military trials.
f. The judge advocate’s advice to the court not to allow itself to be swayed by the submissions of counsel as in regular courts.
Ground Two:
Error in law
The court erred in law and thereby misdirected itself when it failed and or neglected to observe and apply statutory provisions and rules relating to voluntariness of statements.
Particulars
a. The testimonies of D.W. 1, 2,3 and 4 to the effect that the appellant and other suspects were tortured into adopting statements dictated to them (from an anonymous petition) by military police investigators.
b. The very vital testimony of PW2 (a person called by the prosecution) to the same effect that both suspects and witness were tortured and induced to adopt statements dictated to them.
c. Evidence of PW2 that statements voluntarily written were torn by military police investigators.
Ground Three:
The judgment of the General Court Martial is generally unreasonable unwarranted and cannot be support having regards to the weight of evidence.
Particulars
a. Appellant was alleged to have inserted 53 fake names in payment vouchers exhibits c 7,10,11 and 13 but throughout the trial, none of the documents was proved to have been made by the appellant.
b. The appellant worked in D.MP. IKOYI Lagos but evidence before the court showed that names and documents of military pensions were compiled and sent to D.M.P. from command Army Records (CAR) in LOKOJA.
c. No evidence was led before the court to show that any of the 53 alleged fake names was fake or that the appellant inserted any in the vouchers.
d. Appellant was alleged to have stolen N8.9 million but no kobo was proved before the court to have been lost by the Federal Government.
e. The court relied on the contents of an anonymous petition as narrated verbally by PW1 (The investigator).
f. Evidence of PW2 which contradicted that of PW1 was disregarded by the court.”
From the above grounds of appeal, the appellant has distilled two issues for determination by this court to wit:
“1. Whether the appellant’s right to fair hearing under section 36 of the Constitution of the Federal Republic of Nigeria, 1999 was not breached by the appointment of a Military Police Officer from the same office which investigated the case as Judge Advocate – and the overtly hostile misdirection resulting there from.
- Whether there was (in Law) a confession and or evidence upon which the court relied to convict the appellant.”
From the same grounds of appeal the respondents also distilled two issues for determination to wit:
“1. Whether a Judge Advocate can be considered a member of a Court Martial capable of voting to reach the ultimate decision of the court in a given matter.
- Whether Exhibit C2 the statement of appellant amounted to confession and thereby admissible before the court and its effect.”
On appellant’s issue No. 1 appellant’s counsel had argued that it was wrong for officers of the corps of Military Police to have investigated the allegations against the appellant, prosecuted the appellant and at the same time formed part of the General Court Martial that tried him as Judge Advocate. Counsel argued that that would be in breach of the principles of fair hearing as provided for in s. 36 of the Constitution of Federal Republic of Nigeria 1999. More importantly, he argued that by the provisions of the Queens Regulations for the Army 1975 and the Rules of Procedure (Army) 1972 both of which provisions were applicable to the Nigerian Army at the given time, a Military Police Officer was expressly precluded from being appointed to serve on a court martial.
The respondents do not dispute these provisions. In fact in their brief of argument they reproduced Rule 23 of the Rules of Procedure (Army) 1972 which reads as follows:
Members of the Provost Staff or Officers of the Royal Military Police should not be members of a court martial.
Counsel however argued strenuously that a judge advocate is not strictu sensu a member of a court martial, not being a voting member, and that the judge advocate being a military police officer does not in any way undermine the interest of the accused person.
Who are members of a court martial? The answer is to be found in S.129 of the Armed Forces Decree. Decree No. 105, 1993, the extant statutory provision of the relevant period. It reads:
“129. There shall be, for the purposes of carrying out the provisions of this Decree, two types of courts martial, that is
(a) a general court martial, consisting of a president and not less than four members, a waiting member, a liaison officer and a Judge Advocate.
(b) a special court martial, consisting of a president and not less than two members, a waiting member, a liaison officer and a Judge Advocate.”
By operation of law, a judge advocate is a member of a court martial.
He is, a member of such importance that he is required to be present at all the sittings of the court. He must be a legal practitioner of at least 3 years post call experience and his functions in a court martial include giving rulings and directions on questions of law including practice and procedure. His role in a court martial is of utmost importance as the other members act more in the capacity of a jury. The want of a rating right does not in any way undermine the very pivotal role of the judge advocate in a court martial.
S.181(1) of Decree 105 of 1993 expressly imported the Rules of Procedure (Army) 1972. Even though by S. 181 (2) of the said Decree these Rule shall cease to operate once the President makes his own Rules, there is nothing before us to show that as at 1999 when the trial in question took place, the President of the Federal Republic of Nigeria had made his own Rules. The Nigerian Army was therefore bound as at 1999 by the Provisions of the Rules of Procedure (Army) 1972 Rule 23 of the said Rules clearly preclude Military Police Officers from membership of a court martial. The judge Advocate in the instant trial, a member of the court martial, was a Military Police Officer. He was not competent to be a member of the court martial. His membership has undermined the competence of that court martial to try the appellant.
A court has necessary competence to exercise jurisdiction in a cause or matter if:
(a) It is properly constituted with respect to the number and qualification of its membership,
(b) The subject of the action is within its jurisdiction;
(c) The action is initiated by due process of law; and
(d) Any condition precedent to the exercise of its jurisdiction is fulfilled.
Any defect in the proceedings would be fatal however well conducted because the defect is extrinsic to the adjudication – See Madukolu vs Nkemdilim (1962) 2 SCNLR 341, Uti vs Onoyivwe (1991) 1 NWLR (pt 166) 166, Miscellaneous Offences Tribunal vs Okoroafor (2001) 18 NWLR (pt745) 295.
The inclusion of a Military Police Officer as a member of the court martial has denied the court martial the competence to entertain the charge against the appellant and it is on these ground that this appeal succeeds.
Having found the court martial incompetent, it is unnecessary to go into other issues raised in the grounds of appeal. The proceedings of the court martial is hereby vacated and the appellant discharged.
Other Citations: (2007)LCN/2602(CA)
