CRIMINAL LITIGATION: CASES AND PRINCIPLE IN COURT MARTIAL IN NIGERIA

Court Martial falls under the category of court with special Jurisdiction. So we would be looking at;

1.      Jurisdiction of Court Martial

2.      Who can convene

3.      Delegation to Convene

4.      Validity Tests on a Court Martial.

THE JURISDICTION OF COURT MARTIAL

N.B: The applicable law that guides Court Martial is Armed Forces Act

According to SECTION 130 AFA it has jurisdiction over persons subject to service law;

a)      Military

b)      Navy

c)      Air force

In the case of OLATUNJI V STATE it affirms that the law that any service officer who commits any offence triable by Martial Court can arrest investigated and tried accordingly and the said officer shall continue to be subject to the jurisdiction of the Court Martial even after he/she ceases to be subject to the service law. SEE SECTION 168(1) AFA

ALSO, In SECTION 169(2)AFA any service officer who ceases to be subject to service law, but who commits an offence triable by Court Martial while in service must be tried within 3 Months after he ceases to be subject to service law. This is affirmed in NAF V OBIOSA

SUBSEQUENTLY, Court Martial has Jurisdiction over both Civil and Military Offences on every person subject to service law and it does not matter whether the offence was committed in the course of performing a Military duty. According to SECTION 114(1)AFA;

        

    ‘’A person subject to service law under the Act who commits any other civil offence whether or not listed under this Act or committed in Nigeria or elsewhere, is guilty of an offence under this Act’’

POSER: Are you saying this Section ousts the Jurisdiction of Civil Court?

CAPITAL NO, by Virtue of SECTION 170(1)AFA it provides that subject to the provision of this act prohibiting retrial where conviction is quashed, nothing in this Act shall restrict the offenses for which a person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to service law under this Act

INTERPRETATION: So this implies that a Civil Court can try a person who though subject to Service Law but committed a civil offence…

BUT, the Civil Court by virtue of SECTION 170(2)AFA must take cognizance of his punishment where he had been tried by the Court Martial when awarding punishment to him in civil court.

INTERPRETATION: When a Court- Martial tries him first, he can still be tried in a Civil Court, in other words the trial of a civil offence in a Court Martial does not ousts the Jurisdiction of he Civil Court.

TAKE NOTE: If the Trial is first instituted in a Civil Court in relation to a Civil Offense, it will ousts the Jurisdiction of the Court Martial. See SECTION 171(a) AFA. In other words this means that as regards Civil Offense where an offender has been discharged and acquitted by a Competent Civil Court, he can’t be tried for this same offence in any other court including Court Martial. SEE SECTION 36(9) CFRN

HOWEVER, TAKE NOTE in a situation where the Attorney General uses his power of NOLLE PROSEQUE for a person subject to Service Law in a Civil Court, the Offender is merely discharged and not acquitted which means that the Civil Court could still re-open the case

PERSONS WHO CAN CONVENE

By virtue of SECTION 131 AFA, they include;

1.      The President of FRN

2.      Chief of Defense Staff

3.      Service Chief

4.      A General Officer, commanding Brigadier, A Colonel or Lieutenant Colonel or Corresponding Rank having command of a body of troops 

5.      An officer acting in place of the above officers

POSER: CAN THE POWER BE DELEGATED?

YES, in NIGERIAN AIR FORCE V OBIOSA: it was held that the Power to convene a Court Martial was delegable, this is affirmed by SECTION 131(4)AFA. This means that a Court Martial may be exercised by any other officer outside those specifically mentioned in SECTION 131 AFA above, if they have authority of the appropriate authority.

TAKE NOTE, a convening order must be issued;

a)      Appropriate Authority’

b)      By writing

c)      If given orally, a written authority convening order must still be given in order to make the trial valid. See OLATUNJI V STATE

VIP IN BAKOSHI V CHIEF OF NAVAL STATE

It was held that a convening order by the appropriate authority is the life and blood of the Jurisdiction of a Court Martial. In the absence of the proper convening order from an appropriate authority, the proceeding is nullity.

                              VALIDITY TEST ON COURT MARTIAL

The Jurisdiction of Court Martial will be tested by its constitution

TEST 1: For a General Court Martial it should consist of a President and not less than 4 members;

a)      A waiting member

b)      A liaison officer and

c)      A Judge Advocate…SEE SECTION 129(a) AFA

TEST 2: For a Special Court Martial it shall consist of a President and not less than 2 members;

a)      A waiting member

b)      A liaison officer and

c)      A Judge Advocate…SEE SECTION 129(b) AFA

TEST 3: An officer shall not be appointed to be a member of a Court-Martial unless is subject to Service Law under this Act and has been an officer in any of the service of the Armed forces for a period amounting in aggregate to not less than 5 years SECTION 133(2) AFA

TEST 4: Where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused. OKORO V NIG.ARMY

TEST 5: A convening officer shall appoint a Judge Advocate for every Court-Martial. SECTION 133(5) AFA

TEST 6: A Judge Advocate shall be a Commissioned Officer who is a qualified Legal Practitioner in Nigeria with at least 3 years Post-call Experience

TEST 7: In a situation where the Court-Martial is to be convened and the necessary number of officers having suitable qualification is not available with due regards to the circumstances, the convening Officer may with the consent of the PROPER SUPERIOR AUTHORITY SECTION 133(7)AFA

TAKE NOTE: Failure to comply with these rules will make the Court Martial lack jurisdiction and based on the principles laid down in MAKUDUOLU V NKEMDILIM; any decision reached will be nullity, this was affirmed in OLATUNJI V STATE

TAKE HEED;

a)      ACJA is not applicable to Court Martial. Section 2 ACJA

b)      The A.G can’t enter Nolle Proseque in a Court-Martial. SECTION 174(a) CFRN

c)      Court Martial is bound by the Rules of Evidence and Manifestation of Fair Trials ..see NIGERIAN ARMY V MOHAMMED

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LITIGATION: PRACTICAL STEPS IN DRAFTING AN AFFIDAVIT

It is trite that we would be required to draft Affidavit in both civil and criminal litigation.

Affidavit is defined as the s formal written statement setting out the facts of your case. It is the main way you present evidence (facts of the case) to a court.

IN JOSIEN HOLDINGS LIMITED & ORS V LORNAMEAD LTD & ANOR: The court defined an AFFIDAVIT to mean a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief

Guiding Rule Of Affidavit

An Affidavit should not contain;

OOPLAC

a)      Objection

b)      Opinion

c)      Prayer

d)     Legal Argument

e)      Conclusion………. SEE SECTION 115 EVIDENC ACT AND BAMAYI V STATE.

POSER: WHAT SHOULD AN AFFIDAVIT CONTAIN?

a)      Only facts which the deponent has personal knowledge or

b)      Information which he believes to be true and in this instance he must state; the grounds of his belief and state the name and full particulars of his informant.

c)      No legal arguments, conclusion or other extraneous maters must be included.

SEE JOSIEN HOLDINGS LIMITED & ORS V LORNAMEAD LTD & ANOR

            DRAFTING OF AN AFFIDAVIT

1)      Heading of the Court

2)      Suit No.

3)      Parties

4)      Title of the affidavit

5)      Introductory part containing the name and particulars of the deponent

6)      The body of the affidavit to be in numbered paragraphs. State facts only either of personal knowledge or from information believed to be true. VII .Attach exhibits if need be

7)      Oath clause

8)      Signature of deponent

9)      Attestation by a Commissioner of oaths

POSER: WHO CAN DEPOSE TO AN AFFIDAVIT”?

Generally the claimant, defendant or the accused as the case may be. However, in certain circumstance other persons can depose to the affidavit but that other person must state;

a)      He has the consent of the claimant to depose to the affidavit

b)      The time, date he got the information deposed to from the claimant so as to avoid the evidence being Hearsay.

SAMPLE OF AN AFFIDAVIT (I removed some information)

IN THE FEDERAL HIGH COURT OF NIGERIA

                                           IN THE LAGOS JUDICIAL DIVISION                

HOLDEN AT LAGOS

SUIT NO: ................

BETWEEN

MR. PETER SINGER.......................................................................APPLICANT

AND

1.      NATIONAL DRUG LAW ENFORCEMENT AGENCY……. RESPONDENT

AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS

I, Mrs. PETER  SINGER, female, adult, Christian, Medical practitioner, and Nigerian citizen of No. 2 Startimes Estate Festac, Lagos do make an oath and state as follows:

1. That I am the wife of the Applicant and by virtue of which I am conversant with the facts of this case.

2. That I have the consent and authority of the Applicant to depose to this affidavit.

3. That the Applicant is in the Federal prisons, Ikoyi Lagos by virtue of which he is unable to depose to this Affidavit himself.

4. That on the 17^th June 2016, I visited the Applicant at about 10am in Ikoyi Prison, Lagos and found him in a terrible condition and he reported the following facts to me, which I verily believe to be true

 that:   

a.       On the 12th of March, 2016, the Applicant was arrested by men of the Nigerian Drug Law and Enforcement Agency at the Muritala Muhammed International Airport and handed over to the police on allegation of drug related offence.

c. He was never charged before any court of law till date since his arrest and detention.

d. Various tests were carried out on him while in custody including body scan, CT Scan, and colonoscopy. A copy of the medical certificate is herein attached as Exhibit A1

e. That his guilt has not been determined by a court.

f. That his life is in endangered by the prison authority since he has not been taken to court.

 8. That the last time I visited the Applicant the prison was full of dead and decayed animals, human excreta and very unhygienic.  

9. That I depose to this affidavit in good faith believing its content to be true and in accordance with the Oaths Act.

Dated this 3^rd Day of March, 2017.

_____________

DEPONENT

SWORN TO AT THE FEDERAL HIGH COURT REGISTRY

THIS 3RD DAY OF APRIL, 2017

BEFORE ME

COMMISSIONER FOR OATHS

N.B: Note the underlined words…….

TAKE NOTE:

The application you drafting will determine the content of your Affidavit

Your Affidavit need not be long but should contain relevant facts in support of your case.

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CRIMINAL LITIGATION: DRAFTING OF BAIL APPLICATION PENDING APPEAL

You could read up on our previous post on Understanding Bail in Nigeria. So today we will be running through the drafting of the bail application pending appeal.

The rule on Bail Application from time is that;

a)      Police Bail gets revoked upon arraignment of the accused person

b)      Bail pending Trial gets revoked after Judgment have been given

c)      Bail pending Appeal until end of Appeal

Remember, that on No B, if the Trial court refuses your application for Bail, you can appeal, on this form of application the accused person is still presumed innocent, so his fundamental right of liberty under SECTION 35&36(5) CFRN still stands. Now you remember the documents he will attach to his application (Read up on our Post on; Bail Pending Trial)

So we working with the presumption that the accused person was actually granted bail in the trial court, so trial proceeds and the accused person found guilty and convicted.

TAKE HEED: What we considering is Application for Bail pending Appeal after Conviction, this is different from Application for Bail pending Trial or Pending Appeal but before Conviction. NWOKE V FRN

TAKE NOTE: That his status in this instance as changed upon conviction, it is presumed that the Prosecution has been relieved of his duty of Burden to Proof and the accused person cannot hide under the auspices of the Right to Liberty under SECTION 35 CFRN.

TAKE NOTE;

The application will depend on the stage at which the Appeal is during the proceeding. Whether the Appeal is at the stage of being BROUGHT or ENTERED

A little recap on what I mean by Appeal is BROUGHT OR ENTERED

IN THE CASE OF BARIGHA V PDP,

Appeal is deemed to have been bought as soon as the Notice of Appeal has been filed at the registry of the lower court.

Appeal is deemed to have been entered as soon as the Record of Appeal has been transmitted to the superior court and entered in the Cause List.

What makes the difference between the two is that; BROUGHT, simply means that the Lower court is still empowered to entertain application, according to ORDER 6 RULE 4 OF COURT OF APPEAL RULES 2016 provides that some application have to first be made to the Lower court and upon refusal it can then be brought to the court of appeal or where there are special circumstances which makes it impossible or impracticable to apply to the court below. The applications the rules envisage are;

a)      Application for Bail Pending Appeal

b)      Leave to Appeal etc….

   

 N.B: When the application is refused at the Lower Court, an application for a similar purpose may be made to the COA within 15 days after the date of refusal. ORDER 6 RULE 3 COAR 2016

      

BUT, on the other hand of ENTERED, the lower court seize from entertaining any application, all application must be taken to the Court of Appeal…….

So, let stroll back to the drafting, I believe you have a grasp of the gist.

The reason for this comparism is because the mode of making application for Bail pending Appeal is by way of Motion and not Summon.

The drafting of the Motion is different while you are at the stage of Appeal been BROUGHT and been ENTERED

V.I.P: Your Application will not be made under SECTION 35 CFRN, because at this stage the accused person has been found guilty of the offence charged. This is the reason for the accused to have a ‘’Special Circumstances’’ grounds upon which the bail application will be granted.

THE GROUNDS ARE

1.      Ill-health

2.      The trial below and conviction are manifestly contestable

3.      The accused is a first time offender

4.      Where the accused person is likely to spend the full term of sentence before the appeal ends

5.      The accused was on bail during trial and he didn’t jump bail

6.       The nature of the appeal is so complex that the accused need constant time with his counsel

N.B: BAMAIYI v STATE and JAMMEL V STATE

TERMS OF BAIL

1.      Self-recognizance

2.      Execution of bond by the accused

3.      Production of surety or sureties who will execute a bond in a specified sum

4.      Deposit in lieu of bond. ETC…

THE DRAFTING

REMEMBER, MOTION + AFFIDAVIT+ WRITTEN ADDRESS

 So the accused person is brought to the Court of Appeal, at this stage the Appeal has been ENTERED.

REMEMBER, his application is not under the constitutional provisions of SECTION 35 &36(5) CFRN

REMEMBER, that if the accused persons are more than 1, you will draft different applications for them

REMEMBER, the Motion to be drafted must comply with the Preacipe FORM 4 in the Court of Appeal Rules

REMEMBER, the condition precedent before applying for bail pending appeal is that there must be a pending substantive appeal

IN THE COURT OF APPEAL OF NIGERIA

HOLDEN AT ABUJA

CHARGE NO:LD/24/09

APPEAL NO:...................

BETWEEN:

MUSA UGOCHUKWU....................................................................APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA.......................................................................................RESPONDENT

NOTICE ON MOTION

BROUGHT PURSUANT TO ORDER 17 RULE 13 OF THE COURT OF APPEAL RULES 2016 AND UNDER THE INHERENT JURISDICTION OF THIS COURT.

TAKE NOTICE that this honourable court will be moved on the 27th day of March 2017 at the hour of 9 0’Clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the Appellant/Applicant for the following reliefs;

1.      AN ORDER GRANTING THE APPLICANTS/APPELLANTS BAIL PENDING THE HEARING AND DETERMINATION OF THE APPEAL.

2.      AND SUCH FURTHER ORDER OR ORDERS as this honourable court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE that the GROUNDS of this Application are;

1.      The trial below and conviction are Manifestly contestable

2.      The well-being of the Appellant.

3.      The appellant is a first time offender.

Dated at Abuja……….this ……………day of ……………..2017

____________________

APPELLANT’S SOLICITOR

MUSA DERIN

GROUP 4 CHAMBERS

NO 1 Law School drive. Victoria Island

FOR SERVICE ON:

RESPONDENT’S SOLICITOR

ATTORNEY GENERAL OF FEDERATION

NLS BWARI, RM F230,Abuja.

                                    IN THE COURT OF APPEAL OF NIGERIA

HOLDEN AT ABUJA

CHARGE NO:LD/24/09

APPEAL NO:...................

BETWEEN:

MUSA UGOCHUKWU....................................................................APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA.......................................................................................RESPONDENT

AFFIDAVIT IN SUPPORT OF NOTICE ON MOTION.

I, Bisi Ebiti, female, Christian, Trader, Nigerian citizen of 6, kubwa road, Bwari, Abuja do hereby make oath and state as follows:

1.      That I am the elder sister of the accused/applicant and by virtue of which I am conversant with the facts of this case.

2.      That I have the authority and consent of the applicant to depose to this affidavit.

3.      That on the 12th March, 2017, judgment was given against the applicant by Hon Justice Maza Maza Suuso the Bwari Judicial division.

4.      A certified copy of the judgment of the lower court is hereby attached and marked Exhibit A1.

5.      That the applicant has filed his notice of appeal, a copy of which is attached and marked Exhibit A3.

6.      That there are special circumstances warranting the grant of this bail in favour of the applicant.

7.      That there is real doubt of the correctness of the conviction on point of law.

8.      That the accused/applicant has never being charged with an offence before in his life

9.      That the accused/applicant is a currently suffering from bronchitis and cardiopathy, a medical certificate is attached and marked Exhibit A4

10.  That the applicant if granted bail will not jump bail.

11.  That he is prepared to provide reasonable sureties.

12.  That i swear to this affidavit in good faith believing same to be  true and correct in accordance with the Oaths Act.

_____________________

DEPONENT

Sworn to at the High Court Federal Capital Territory Registry, Abuja.

This 26th day of March 2017

                                          Before Me

                              -----------------------------------

                              Commissioner of Oath

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