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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