CRITICAL APPRAISAL OF COURT MARTIAL CASES AT APPELLATE COURTS IN NIGERIA 1990- 2014
Court martial is a major aspect of administration of military justice. In Nigeria, courts martial set up by the Army, Navy and Air Force have had numerous problems in the last 24 years leading to upturning of majority of the judgments by appellate courts. Judgments of about 70 percent of court martial cases that were appealed against in Nigeria between 1990 and 2014 were upturned by appellate courts. This work discovered that the major reasons that made appellate courts to upturn the judgments were on grounds of lack of jurisdiction, non-observance of the principles of fair hearing and lack of diligent prosecution among others. The Nigerian Armed Forces have lost several officers and soldiers to dismissals from courts martial of which their dismissals and sentence of imprisonment were upturned many years after, when it was difficult to get them back to service. This equally led to wastage of several man-hours prosecuting such cases at high expense. These were equally accompanied by harsh comments from justices of appellate courts which in some instances ridiculed the military justice system in Nigeria. The research is therefore aimed at proving that between 1990 and 2014, most of the court martial judgments were upturned on appeal based on lack of jurisdiction, non observance of the principles of fair hearing and lack of diligent prosecution. The major objective is to ensure that courts martial follow the prescribed procedures during trials. The research found out that one of the major reasons that makes court martial presidents and members conduct the procedures of the court in ways contrary to what it should be is command influence. Command influence is the negative influence of some convening authorities which makes the members to do his bidding at the courts martial. As a way out of the problem, the research recommended the insulation of courts martial from command influence and ensuring that those whose avoidable actions caused the upturning of court martial judgments on appeal get to feel the consequence of their actions. The principal ways of insulating courts martial from command influence as identified by the research include the Nigerian Armed Forces keying into the housing scheme of the Federal Mortgage Bank of Nigeria to get a personal house for every officer at the rank of Major. The officers are to bear the cost of the houses but to pay gradually from commission. In this way, officers will have a house to retire to, early in their career, thereby reducing the retirement phobia that facilitates command influence. The work equally recommended a situation where court martial members do not get evaluation reports from convening officers of courts martial where they are members. In the final analysis, the researcher believes that if these measures are adopted, the upturning of judgments of courts martial by appellate courts in Nigeria will be reduced to the barest minimum.
- BACKGROUND TO THE STUDY
The Armed Forces of Nigeria like those of other countries of the world are created to defend the country from external aggression and maintain her territorial integrity. They are also created to secure her borders from violation on land, sea or air and to suppress insurrection and act in aid of civil authorities.1 These functions form part of vital interests that are linked with the survival of the country. During wars and internal insurrections as currently experienced in North Eastern part of Nigeria, several members of the Armed Forces pay the supreme prize for the nation to survive. It is for this reason that a special way of ensuring that discipline and justice are maintained in the Armed Forces was crafted.
It is in line with the dangers associated with being a soldier and the need to ensure both discipline and justice in the Armed Forces that court martial was established. A court martial is a special court meant for only persons who are subject to military law, ie members of the Armed Forces and civilians working with military unit on active service.2 The early concept of courts martial was that of a court of discipline rather than a court of justice. The quality of decisions that were handed down in those days was draconian in nature and without regard for justice.3 The importance of ensuring quick dispensation of justice to the members of the Armed Forces may have informed the provision in the Constitution of the Federal Republic of Nigeria (CFRN) 1999, barring the Attorney General of the Federation4 and of the States5 respectively from instituting and undertaking criminal proceedings in courts martial.
The interpretation of quick dispensation of justice in courts martial has however made many commanders who convene courts martial to look more on discipline than on justice which is the main essence of any court of law, courts martial inclusive. A court martial has the status of a High Court in Nigeria as appeals over decisions of courts martial lie to the Court of Appeal with the leave of the Court of Appeal.6 It is only in a case where a court martial awarded a death sentence that the leave of the Court of Appeal is not required.7 Out of about 40 studied cases that have left courts martial to appellate courts in Nigeria, about 70 percent of them have been upturned.8 This situation may have justified the negative name and impression many people have about courts martial. For instance, Chiefe while citing Bishop Jnr in describing a court martial said that:
A court martial is a kangaroo proceeding in which a wretched conscript is dragged before the panel of sadistic matinets, convicted on the basis of perjured evidence and his own confession which has been extracted by torture and sentenced to fifty or sixty years military confinement, chained to the wall of subterranean dungeon and fed on bread and water
Some of the decisions of the Supreme Court and Court of Appeal on several court martial cases make some people doubt the capability of courts martial to ensure that accused persons who appear therein get justice. The trend has been so disturbing that some people wonder if there are lawyers in the Armed Forces and whether a lawyer is included in the jury and whether lawyers appear to defend accused persons before a court martial. In addition to having a lawyer as a judge advocate, defence and prosecution counsel, civilian lawyers, inclusive of Senior Advocates appear therein also.10
Most of the officers and soldiers who were convicted and sentenced to jail terms by courts martial never came back to the Armed Forces even after appellate courts would have quashed their convictions. This has led to the truncating of the career of many officers who could have been of immense benefit to the country. This situation negatively affects the morale of those in service as some of them believe that sooner than later, the same fate may befall them. There was therefore the need to find out the reasons for this age long trend. For the lawyers in the Nigerian Armed Forces, the problem started becoming stigmatic to the extent that it called for action, first to unearth the problems, analyse them and find solutions to guide future courts martial members and judge advocates in the Armed Forces. This is for the purpose of preserving the military justice system in Nigeria and invariably to ensure that the Armed Forces maintain cohesion, high morale and continue to fulfill their role of protecting the territorial integrity of Nigeria.
STATEMENT OF THE RESEARCH PROBLEM
The research problem is whether or not the issue of jurisdiction, non observance of fair hearing and lack of diligent prosecution were the major causes for reversal of most court martial decisions by appellate courts in Nigeria between 1990 and 2014. About 70 percent of court
martial cases that went on appeal between 1990 and 2014 in Nigeria were upturned against the Armed Forces. Most of the cases at courts martial resulted in dismissals and jail terms for the convicted officers and soldiers. These wrongly decided court martial cases have therefore led to low morale among the troops who feel that their colleagues did not get justice, depletion of the strength of the fighting force through wrong dismissals, desertion from operation areas, jail terms and erosion of the confidence of some people in the justice system in the military. The outcome of some of these cases at courts martial have also done a lot of harm to the psyche of Nigerian soldiers. Anything that has to do with morale, strength and fighting efficiency of troops in a country like these wrong decisions by courts martial has a negative impact on the survival of the nation itself.
AIM AND OBJECTIVES OF THE STUDY
Arising from the statement of the problem, this research work aims at establishing that between 1990 and 2014, most of the court martial judgments were upturned on appeal based on lack of jurisdiction, non observance of the principles of fair hearing and lack of diligent prosecution. The major objective is to analyze the issues raised by appellate courts that are linked to jurisdiction, fair hearing and lack of diligent prosecution with a view to correcting the anomaly in future court martial trials.
This work will be of immense benefit to the Nigerian Armed Forces. It is hoped to stem the trend of unnecessary dismissals and imprisonment of Armed Forces personnel as subsequent courts martial will learn from the mistakes of the past when the members see the analyses of the failures of the past courts martial. It will be a form of compendium of lessons learnt for future members of courts martial. Specifically, members of courts martial, judge advocates and
prosecutors at courts martial will get to know the reasons why the court martial cases that were lost by the Armed Forces on appeal, were lost. They will avoid such situations as they suit their cases at the court martial. At appellate courts, defence lawyers will equally see the reasons for upturning of old cases and apply the ratios as appropriate, which would contribute to enhancement of legal studies. The work will equally be a handy source of material for policy makers in the Armed Forces, commanders, law students, judges who want to know more about courts martial and judge advocates at courts martial to give prompt and reasonable advice to court members. The research will equally be of immense benefit to Ahmadu Bello University Zaria, being the only University in Nigeria offering Military Judge Advocay Course as a course of study at Post Graduate level. It is also hoped to provoke further research into courts martial and military law generally.
SCOPE AND LIMITATION OF THE STUDY
This work covered the critical appraisal of decisions of the Court of Appeal and Supreme Court on cases that emanated from courts martial in Nigerian Armed Forces from 1990 to 2014. This researcher studied 40 court martial cases of which the judgments were appealed against and 28 of the judgments were upturned by appellate courts in Nigeria. The number of cases of which the judgments were upturned on appeal constitutes 70 percent of the cases studied. The work was limited by scarcity of literatures on courts martial in Nigeria and the fact that aside Ahmadu Bello University which offers a Post Graduate Diploma in Military Judge Advocacy, no other University in Nigeria offers a diploma or degree in Military Law. It was therefore not easy to gather materials for this work.
This work was based on doctrinal and teleological research methods. In terms of doctrinal research methodology, the researcher made use of statutes as primary sources and law reports, textbooks and journals as secondary sources. With regard to teleological research methodology, this researcher made use of his practical experience as a military lawyer in terms of prosecution, defence and supervision of courts martial