In The Supreme Court of Nigeria
On Friday, the 4th day of May, 2018
Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
LT. COLONEL P. Y. AWUSA – Appellant
NIGERIAN ARMY – Respondent
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant, who was at the Nigerian Army School of Finance and Administration [NASFA], failed to join his unit from 21/2/2008 to 2/2/2010, and a General Court Martial [GCM] was convened by then Chief of Army Staff, Lt. General A. B. Dambazau, to try him for “desertion”, contrary to Section 60(1)(a) of the Armed Forces Act.At the trial, Respondent called eleven witnesses and tendered thirty-two Exhibits, while Appellant testified in his own defence and tendered fourteen Exhibits. The GCM delivered its Judgment on 9/8/2010, wherein it found the Appellant guilty as charged and recommended that he be dismissed from the Nigerian Army, and this was confirmed by the Appropriate Superior Authority.
Dissatisfied, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing six Grounds of Appeal. Both sides formulated Issues for Determination in their Briefs of Argument; however, the Court of Appeal, upon considering the facts, was of the view that there were two Issues for Determination, as follows:
i. Whether the offence of desertion on the Charge Sheet and for which the Appellant was tried and convicted was known to and maintainable in law under the provision of Section 60 (1) (a) of the Armed Forces Act. Cap A20 Laws of the Federation of Nigeria, 2004.
ii. Whether the Respondent proved its case against the Appellant beyond reasonable doubt to warrant the conviction and sentence of the Appellant to dismissal from the Nigerian Army.
It resolved both Issues against the Appellant, and concluded thus:
This Court finds and holds that this Appeal is completely lacking in merit and it is hereby dismissed. The Judgment of the General Court Martial delivered on 9/8/2010, finding the Appellant guilty of desertion and recommending him for dismissal from the service of the Nigerian Army as well as the confirmation of the sentence by the Appropriate Superior Authority of the Nigerian Army on 3/12/2010 are hereby affirmed.
Further aggrieved, the Appellant filed a Notice of Appeal that was later amended in this Court, and the Amended Notice of Appeal contains nine Grounds of Appeal. However, the Respondent filed a Notice of Preliminary Objection urging this Court to strike out or dismiss this Appeal, and the Grounds of Objection are as follows –
(1) The Grounds of Appeal were not premised on any ground of law and as a matter of law cannot be appealed against as a matter of right.
(2) Before the Appeal can properly be entertained by this Hon. Court, he needed first as a prerequisite to foremost obtain leave of this Court.
(3) Grounds 1, 3, 4, 5, 6, 7, 8 & 9 never emanated from the Judgment of the lower Court but from the Judgment of the trial General Court Martial.
(4) Grounds 1, 3, 4, 5. 6, 7, 8 & 9 were supported by incongruous particulars that are not connected with the Grounds.
The Parties filed and adopted their respective Briefs of Argument, and the Respondent argued its Preliminary Objection in its Brief.
But I must say the Briefs of Arguments presented by both Parties, leave much to be desired and fail the test of what a brief should be.
A well-written brief should contain a concise statement of facts of a case that are material to the consideration of questions presented for determination by the Court. It should also contain direct, concise and succinct statement of arguments in the Appeal – see S.P.D.C. V. F.B.I.R (1996) 8 NWLR (Pt. 466) 256 and Nwokoro V Onuma (1990) 3 NWLR (Pt. 136) 22, wherein this Court, following the case of Duncan v. Kohler 37, Minn.379, defined a brief thus –
A condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the Appeal; together with the reasons and authorities, which can sustain them.
In this case, under Statement of Facts at pages 1 to 6 of his Brief, Appellant narrated the entire history of when he joined the Army in 1978, his achievements as an Army Officer, and promotions etc., including his well-deserved deployment to the Nigerian Mission in the United Kingdom as the Deputy Defence Adviser, Finance, which made, not only his colleagues, but senior officers, jealous. For instance, he stated as follows at pages 4 to 5 of his brief that –
He had persistently been a victim of gang-ups the gang-ups sent him to redundant offices and left him with no functions – – or just on the eve of promotions to stop him from promotion or good appointment; punitive steps always
premised on false and unfounded allegations to achieve the damage of preventing his promotion or appointment. The same gang had started a fresh plot and he decided to resist being manipulated out of promotion and his only good posting in his entire career.
He canvassed similar arguments in his 21-page Brief of Argument of gang-ups due to jealousy, which led to the Charge against him, conviction by the GCM, and dismissal from the Nigerian Army. So, most of what he had to say touched on sentiments and not the law.
The Respondent did not fare any better; it focused on flaws in the Grounds of Appeal in its entire brief. As the Appellant noted in his Reply Brief, the Respondent included its Preliminary Objection “in the main body of the submissions in the brief”, which is wrong.
The Appellant is right; there is a marked difference between a Preliminary Objection and Issues for Determination. This Court, per Chukwuma-Eneh, JSC, termed them “strange bedfellows” in Odunze V Nwosu(2007) 13 NWLR (Pt.1050) 1, wherein he said that:
Issue for determination and preliminary objection under our Rules, do not have a common meeting ground.
Preliminary objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Courts in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the Parties while issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal – – it must relate to the grounds of appeal. The two are more or less strange bedfellows: and so, for a preliminary objection to be dressed in the garb given to it here is strange and improper.
In other words, the determination of a preliminary objection to the hearing of an Appeal, is not a hearing of the Appeal, which can only be considered based on issues for determination distilled from grounds of Appeal – Sanusi V Ayoola (1992) 9 NWLR (Pt. 265) 275.
Briefs of arguments are meant to assist in the administration of justice by making the work of counsel and Court simpler once a matter gets to the oral hearing stage. “It is to promote justice”? – see Eng. Ent. V. A.-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381 SC, wherein this Court per Eso, JSC, further observed as follows-
The Courts gain immense assistance from excellent briefs when it gets to the stage of the Court undertaking research into the matter before it.
See also FSB International Bank Ltd. v. Imano (Nig.) Ltd. (2001) 11 NWLR (Pt.679) 620 at 630, wherein Achike, JSC, also stated that –
A good brief should be readable, concise but comprehensive, leaving no stone untouched in relation to the issues placed before the Court, which must be adequately addressed. On contrast, a bad brief bores the Court and sometimes, even a painstaking Judge, may be eluded in eliciting the matter in controversy to the chagrin of counsel’s client. It is, therefore, hoped that in the interest of the Court and the client’s case, counsel should appreciate that presentation of a good brief is an indispensable asset to successful appellate legal practice.
Be that as it may, there are numerous authorities on the principle that despite the inelegance or flaws in a Party’s brief of argument, an appellate Court has a duty to examine the arguments therein, and decide the case on its merit – see Ekpemupolo V Edremoda(2009) 8 NWLR (Pt. 1142) 166 SC, Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 SC, and the locus classicus on the subject – Obiora v. Osele (1989) 1 NWLR (Pt.97) 279, wherein Oputa, JSC, aptly stated:
It is my view that the filing of these Briefs (no matter how faulty each is, or all of them are), does indicate a willingness, an eagerness and a readiness on the part of the Appellant to prosecute his appeal. A bad, faulty and/or in elegant Brief will surely attract adverse comments from the Courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief, which is faulty. One cannot close ones eyes to the fact of its existence.
The fact is that this Appeal must be resolved one way or the other. However, in view of the faulty/inelegant Briefs filed by the Parties, which this Court cannot close its eyes to, resolving the Appeal will entail sifting out facts that are
material to the Appeal in this Court; and scrutinizing complaints in the Grounds of Appeal to lay bare, as it were, the real Issues that call for determination in the Appeal.
Now, it is an established fact that in July 2006, the Appellant was nominated for deployment to the Nigerian Mission in London, as the Deputy Defence Adviser, Finance and that he duty reported. But in July 2007, he was shortlisted as one of the Officers to attend a Course at the Armed Forces Command and Staff College, Jaji, with effect from 1/8/2017. The Respondent’s case is that he did not report immediately, and refused to hand over his office in London. He eventually reported on 14/9/2007, but the College authorities refused to admit him on the ground that he was seven weeks late. After intervention by the office of the Chief of Army Staff [COAS], he was reinstated into the course sometime in November, 2007.
The Appellant did not report back to the College until 7/1/2008, and he pleaded for a deferment of his nomination for the course. In approving same, COAS directed that he be redeployed within the Nigerian Army Finance Corps, and by a letter dated 21/2/2008, Appellant was redeployed to the Nigerian Army School of Finance and Administration [NASFA], but rather than report at the school, he returned to the Nigerian Mission in London without clearance.
The Appellant was declared Away Without Official License [AWOL] in March 2008. A Board of Inquiry was then convened to investigate the circumstances of his absenteeism and its Findings and Recommendations were forwarded to NASFA Headquarters for necessary action, and following the directive of the COAS that its recommendations be implemented, the name of the Appellant, with his photograph, was published as a deserter in an edition of “Soja Magazine” and his name was deleted from NASFA database.
But upon his return to Nigeria, the Appellant was arrested on 2/2/2010, and by a letter dated 4/2/2010, he was “rejabbed” into the Nigerian Army, and his name was reinstated in NASFA data base. Thereafter, the GCM was convened to try Appellant for desertion.
On his part, the Appellant admitted he appealed for deferment of his nomination for the said Course, and it was granted and he, thereafter, returned to London but only to complete the handover. He narrated how he was advised to vacate his official residence in London not later than 14/12/2017. When he failed to vacate same, a firm of Solicitors wrote him and his wife a letter dated 19/1/2009, giving them two weeks to vacate the premises. By a letter dated 23/3/2009, the office of the Defence Adviser informed him that he had been declared a deserter with effect from 29/12/2008 and he was to submit military accouterment and government property in his possession including diplomatic passport, and vacate the said official Residence; and he responded by a letter dated 14/42009.
While he was trying to sort out all these issues, his diplomatic passport was repossessed by the Nigerian High Commission and when he was declared AWOL, he pleaded with the Commission to allow him to return to Nigeria. He wrote letters to the officials on the need to release his passport to enable him travel to Nigeria to sort out issues, but all to no avail until he was declared a deserter.
He was eventually ejected from the Residence in January 2010. He got an Emergency Travelling Certificate and a ticket paid for by Nigerian High Commission, which he used to return on 2/2/2010.
After considering the evidence before it, and closing Addresses of the Prosecution and Defence as well as the summing up of the Judge Advocate, the GCM remarked as follows in its Judgment –
a. The Accused did not want to attend the Senior Staff Course firstly because he got the nomination late. Secondly, he believed it was not necessary or relevant to his career growth being a Direct Regular Commissioned Officer and thirdly, he felt he has not yet served out his perceived tenure as DDA [Deputy Director, Finance] in London.
b. He made spirited attempts to avoid attending the course, which included writing a letter of appeal for the deferment of the Course [Exhibit P10] to the Comdt (sic) AFCSC. The Comdt AFCSC forwarded the application for deferment of the course for the necessary action of the COAS [Exhibit P11].
c. The COAS approved the appeal for deferment of the course and thereafter gave directive to redeploy the Accused within the NAFC, which was strictly carried out [Exhibit P12]. The claim by the Accused that he returned to his unit in London as DDA Fin on the strength of any return to Unit letter was spurious.
d. The Accused was redeployed with immediate effect to NASFA vide Exhibit Pl5; NA/FIN/123/1/VOL 16/10 dated 21 Feb 08. His posting consequently remains to NASFA with effect from 21 Feb 08. It was the same NASFA that rejabbed him and reinstated him into Service after his arrest on 2 Feb 10.
e. Rather than the Accused reporting to NASFA and obtaining a pass therefrom for whatever he might need to do, he chose to travel back to London without authorization. In London, he refused to hand over as ordered by the DA first to DDA Library on the pretext that DDA Library was not a Finance Corp officer and later to Lt Col Ochei his successor Finance Corp officer on the pretext that Lt Col Ochei had no diplomatic passport.
f. If the Accused had a legitimate reason to return to London after his deployment to NASFA vide a letter dated 21 Feb 08, he would have applied for a pass and proper security clearance to travel.
g. The Accused did not exhibit the traits of a disciplined officer in the way he conducted himself by defying all voices of reason and counseling by superiors and contemporaries alike. He unreasonably wanted to stay put as DDA Fin and resisted reporting to NASFA.
h. The Accused had been redundant and unproductive in the Service of the NA since he handed over to Lt Col Ochei in September 2007. After following the procedure, which takes time to attain, Exhibit P13: AHQ/G1/300/194 dated 3 Dec 08 directed that Accused be declared a deserter and this was dutifully carried out vide the publication in [Exhibit P24] New Soja Magazine. First Quarter Edition for year 2009.
i. The Defence Section of the National (sic) High Commission also dutifully informed the Accused of his Deserter Status Compliance vide Exhibit D12: NHC/DA/29/A dated 23 Mar 09. Despite receiving this letter [Exhibit D14], the Accused failed to still turn himself in until he was arrested on 2 Feb 10. The Accused never had any intention of rejoining the NA though his unit; NASFA until he was arrested.
j. The Accused had contemptuously reneged on the oath he took while being commissioned that he would go wherever and whenever ordered by land, sea or air and would obey all the commands of those placed above him with the way he chose not to report to NASFA. It is unthinkable that any reasonable officer of the rank of Lt Col who is mindful of his career in the NA would behave the way Accused did.
k. It is fanciful for the Accused to say that he was staying in the official residence of DDA Fin London during the material period (21 Feb 08 – 2 Feb 10) but he was there as an unwanted guest. The GCM believes that the Defence Section, Nigerian High Commission decided to play along with nuances and idiocy of the Accused in order not to create embarrassment particularly for the Nigerian High Commission and generally soil the name of Nigeria. This GCM finds you Lt Col PY Awusa (N/9006) guilty of the offence of desertion as charged.
As I pointed out earlier, the Court of Appeal identified two Issues for Determination in its Judgment, and on the Issue of whether the offence of desertion as charged is known to law, it observed that:
The real grouse of the Appellant under this Issue for Determination is with the particulars of the offence with which was charged, and not with the offence itself. Counsel stated that the charge read that the Appellant committed the offence of desertion by refusing to join his unit as against the wordings of the Section [i.e, Section 60 (1) (a) of the Armed Forces Act], which talk about refusal to join the Armed Forces.
After reviewing the position of the law, it concluded as follows
It was not the case of the Appellant that he was misled by the framing of the Charge and/or that he did not understand the purport of the allegation against him in the Charge. In fact the Record of Appeal shows that in the course of exchanges between the President of the GCM and Appellant before the start of trial, the Appellant confirmed that he clearly understood the statement of the offence read to him. It is trite that even where there is an alleged defect in a Charge and the Record of the Court shows that the Accused was not misled by the said defect and clearly understood the allegation against him and was represented by Counsel at the trial, an attempt to challenge his conviction on appeal on the basis of the defect in the charge will be puerile, nothing but a storm in a teacup .This Court finds and holds that the offence of desertion as stated on the charge sheet and for which the Appellant was tried and convicted is known to and maintainable in law under the provisions of Section 60 (4) (a) of the Armed Forces Act and that, even assuming that the charge was defective, the Appellant cannot raise such defect at this stage of proceedings and any such defect, if any, cannot affect the decision of the GCM. The first issue is resolved against the Appellant.
On Issue 2, whether the Respondent proved its case against Appellant, it referred to GCM’s Findings Nos d. to j. (supra), and held as follows:
The Appellant has not challenged these findings and not even the conclusion drawn therefrom that he never had the intention of rejoining the NA through his unit, NASFA until he was arrested. The Appellants case is that the GCM was wrong in fixing him with an intention of permanently leaving the Armed Forces because the authorities knew where he was the whole time and that he exchanged oral and written communications with senior officers during the period of said desertion. As examples of such communication, the Appellant pointed to the letter informing him of the approval of his request for deferment of his nomination for the Senior Officers Course dated 3/3/2008.
Exhibit D2 as well as to discussion he had with Major General Charles Airhiavbere, the tenth Prosecution Witness, who was the then Commander Corps of Army Finance and Administration (C-CAFA) on 3/3/2008 and letters written to him by and on behalf of the Defence Section of the Nigerian High Commission requesting him to vacate the official residence allocated to him and informing him of his deserter status, Exhibit D11 and D12.
This Court must say it fails to see the relevance of these to the issue at stake in this matter. It is not an ingredient of the offence of desertion that the Military Authorities must not know the whereabout of and/or not have any communication with the Appellant throughout the period of the desertion. This point was made by Akin Kejawa in his book Military Law in Nigeria where the learned author stated that culpability for desertion attaches where an Accused fails to join or leaves his unit to avoid service in particular circumstances and that it is immaterial that he remains in the service of another unit, for his presence in a unit other than the one he is officially posted is culpable.
In none of the said communications was the action of Appellant in failing to report to NASFA sanctioned or authorized by the Military Authorities.
In fact, the need for the Appellant to report at once to NASFA was emphasized by Major General Charles Airhiavbere and by the Defence Adviser in their respective communications with Appellant Counsel suggested that the Appellant was unable to return to Nigeria to sort issues with Military Authorities because of the seizure of his passport.
The suggestion is self-serving. The issue of the seizure of the diplomatic passport of Appellant did not arise until late 2009 as evidenced by the date on Exhibits D14 and D15, so they cannot be the reason for the refusal of the Appellant to join his unit on 21/2/2008 and to remain away from the unit till late 2009. What is evident to this Court is that the Appellant, rather than report to NASFA on his deployment there on 21/2/2008, chose on his own, without any authorization or permission from appropriate Military Authorities, to return to his former posting in London and travelled to London on 10/3/2008. The Appellant stayed put in London despite everything done to him by the Defence Adviser to get him to return to Nigeria, including threats to reject him from the official residence, stopping his allowances and payment for his utilities, locking him out of the Mission Office and warning of the possible repercussions of his refusal on his career in the Army.
The Appellant admitted very clearly in his statement Exhibit P1, and in the letter he wrote on his deserter status, Exhibit D13, that his reasons for returning to his former posting in London in March 2008 and for staying put thereat until 1/2/2010 were personal and that he chose to stay on in London despite his salary and allowances being stopped by the NA since 2008 and despite his being advised by the Defence Adviser that his actions would jeopardize his career. These show that Appellant was obviously willing to forgo his career to satisfy personal reasons for staying in London. In R. Vs. Mahoney supra, the English Court Martial Appeal Court stated:
“If a man is absent from October, 9 to October, 31st, I should say that that is ample time for Court-Martial to hold that he did not intend to return.
Why he did not intend to return has to be explained by him, No explanation being given, there was ample evidence here on which the Court-Martial could hold that the Appellant was absent from unit from October, 9th, 1955 till his arrest on April, 1956, and therefore there was ample evidence that he had been absent from such a long time, in the absence of any explanation by him, he intended to desert Her Majesty’s Forces.”
In the instant case, there was ample evidence before the GCM that Appellant was absent from and did not join his unit from 27/2/2008 to 2/2/2010 and the Appellant did not present before the GCM any authorization or a national and legally justifiable reason for his absence and refusal to join the unit. The GCM was thus correct in fixing the Appellant with the necessary intention of desiring to be permanently remaining absent from duty.
The next port of call is Respondent’s Notice of Preliminary Objection. Apart from Ground 2, which is the omnibus Ground of Appeal that the decision of the Court below is unwarranted, unreasonable, and cannot be supported having regard to the evidence, the Respondent objected to the other eight Grounds
of Appeal on the ground that they are not premised on any grounds of law; that the Appellant did not seek leave of Court to file same; that they did not emanate from the Judgment of the Court below; and they are supported by incongruous particulars.
In arguing the Objection in its Brief of Argument, the Respondent referred to Section 233 (2) of the Constitution (as amended) and cited:
Ojemien V Momodu (1983) SCNLR 135 at 136
Gov. of Kaduna State V Dada (1986) 4 NWLR (Pt.38) 687 at 695
Uchendu V Ogboni (1999) 5 NWLR (Pt.603) 337 at 346
Yaro V Arewa Cons. Ltd (2007) 17 NWLR (Pt.1063) 333 at 343
Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 542
Gen. Electric Co V Akande (2010) 18 NWLR (Pt.1225) 596 at 601
Jim Jaja V. COP (Rivers)  6 NWLR (Pt 1350) 225 at 233
Obijuru V. Ozims (1985) 2 NWLR (Pt.6) 167 at 169
Irhabor V. Ogaiamien (1999) 2 NWLR (Pt.616) 517 at 519
Based on the principles enunciated therein, it urged this Court to hold that the Appeal is incompetent as the said Grounds with their particulars are predicated on the conditions enumerated under Section 233(2), which relates only to those conditions upon which an appeal lies with leave, and Appellant having not procured the necessary fundamental leave has, thereby imperiled the Appeal.
It also argued that an Appeal is confined to consideration of the record from the Court below with no new testimonies taken or new issues raised thereon; that it is an invitation to the superior Court to find out whether or not proper consideration of the law and facts by the lower Court are correct and defensible- Ibodo V Enarofia(1980) NSCC (Vol.12) 195; that in the Issues formulated, the Appellant did not state which Grounds of Appeal they were formulated from; and that he completely abandoned arguments on Issues raised in the Appeal but strangely embarked upon his arguments as if it was in the trial Court that the Appeal is pending. It urged this Court to strike out the Appeal for being incompetent.
The Appellant argued in his Reply Brief that the said Grounds are premised on Section 233(2) (a), b) and (c) of the Constitution. Citing Nwadike V Ibekwe  4 NWLR (Pt. 67) 718, he submitted that the relevant Rules established therein apply to each Ground; that the main thrust of this Appeal challenges the validity of the trial on the absence of evidence of service of the order of transfer [Exhibit P15]; and that the evidence relied on by the GCM conflicts with official Records of the Army, since he went to see DAFA [aka C-CAFA] only once but there are three versions of that meeting.
He reproduced excerpts from testimonies of witnesses and some Exhibits, and proffered arguments supported by a number of judicial authorities from pages 4 -7 of the Reply Brief, which is, certainty, not the essence or import of a reply brief in an Appeal.
A reply brief is filed when issues of law or arguments raised in the Respondent’s brief call, for a reply; it deals with new points. Thus, a reply brief is limited to finding answers to questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief – see Ikine & Ors v. Edjerode & Ors (2001) LPELR-1479(SC) and Mozie V. Mbamalu (2006) 15 NWLR (pt. 1003) 466 SC, wherein Tobi, JSC, aptly observed as follows –
A reply brief, as the name implies, is a reply to the Respondents brief. A reply brief is filed when an issue of law or arguments raised in the Respondents brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the Appellant’s brief.
As to the Objection, I must say that I find it actually disheartening that notwithstanding the tons of judicial authorities on the subject, this Court in 2018, still has to explain rudimentary principles of law regarding the
importance and essence of grounds of Appeal, etc.
But, in view of the Respondent’s Objection; this must be done. Grounds of Appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal arise from the Grounds of Appeal, which emanated from the decision appealed against Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243 SC.
It is also settled that the particulars are the specific reasoning, finding or observations relating to or projecting the error or misdirection complained of – see Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 SC, wherein this Court, per Akpata, JSC, further explained as follows:
They are in a sense the itemization of the error or misdirection in the Judgment or Ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of the Appeal to establish that the Court erred or misdirected itself. They should also not be independent complaint from the ground but ancillary to it.
See also Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, observed that:
The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.
It is also settled that in determining whether the ground of Appeal alleges an error in law or fact, it is relevant and crucial to construe the ground together with the particulars of error alleged because its classification as a ground of law can only give competence to an Appeal without leave, if the nature of the misdirection or error clearly stated in the particulars bears out the category assigned –
Garuba V. Omokhodion (2011) 6-7 SC (Pt. V) 89, Metal Construction (W. A.) Ltd. v. D. A. Migliore & Ors (1990) 1 NWLR (Pt.126) 299 SC.
What is more, where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. Failure to obtain leave renders the appeal incompetent, and it will be thrown out Garuba V. Omokhodion (supra). The question, therefore, is what is the distinction between the questions of law and questions of fact?
In answering same, Obaseki, JSC, made the difference clear in Metal Const. (W.A) Ltd. V. D.A. Migliore & Ors (supra) as follows:
Matters of fact have to be ascertained, failing admission by competent and relevant evidence given by witnesses, experts or provided by deeds records, reports, etc. Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An Appeal on matters of fact allows investigation at the hearing of the Appeal of the evidence and the proper inferences from it whereas an Appeal on a point of law limits consideration of the Appeal to such questions as to whether facts admitted or held proved, justify or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.
It is also an elementary principle that an appellate Court will not allow a Party to raise a fresh issue on appeal that was not raised at the trial Court, except where such an issue involves substantial points of law, substantive or procedural, and this must be allowed to prevent an obvious miscarriage of justice – see Okenwa V. Military Governor, Imo State (1996) 2 NWLR (Pt.455) 394 at 407 SC, wherein this Court per Iguh, JSC, further elucidated as follows
An appellate Court must not allow an Appellant to jettison before it, the question on which the Parties joined issue and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the Appellant to commence an entirety new case before the appellate Court. In the same vein, an appellate Court before which a new point is sought to be canvassed will refuse to grant leave to do so where the fresh point raised introduces a new line of
defence completely different from the issues fought by the Parties in the Court below. An Appellant will also not be allowed to raise on Appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced Where, however, such a fresh point or question involves a substantial point of law, substantial or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate Court will allow the question to be raised and the point taken to prevent a miscarriage of justice.
In this case, all the principles of law spelt out above come to play, because Respondent’s contention is that Grounds 1, 3 to 9 of the Grounds of Appeal are grounds of mixed law and fact, not of law, and the Appellant did not seek leave to appeal on those grounds; that they never emanated from the Judgment of Court of Appeal but from that of the GCM; and that where it does, the Particulars of Error are incongruous, and unrelated to the Grounds of Appeal.
In his Reply Brief, Appellant submitted that the source of life of his Issue 1 can be traced to Grounds 3, 4, 5 & 8, which complain:
Ground Three: The Honourable Appellate Court Justices erred in Law when they upheld the decision that there was a valid transfer instruction served on the Appellant and thereof held
“On the second ingredient, it was not in dispute in this matter that by a letter dated 21/2/2008, the Appellant was redeployed to NASFA by the Nigerian Army Finance Corps.
PARTICULARS OF ERROR
1. There was no evidence that the letter of transfer of 21/2/2002 (Exhibit P15) was ever served on the Appellant.
2. Appellant asserted that it was on 3/32008 that he was interviewed by DAFA (PW10) and was thereafter only served the Deferment to school letter, Exhibit 2, and this was corroborated by PW4.
3. The Appellant was on military/diplomatic posting to Britain.
4. That Federal Republic of Nigeria provided the Appellant with all the financial and administrative support needed for him to take up the posting in London with his family from Nigeria.
5. That the letter of recall to school a few months after their arrival and re-settlement in London, made no provision for Appellant to bring back the Appellant s family who had settled in London.
6. The recall was premised on false, unfounded and un-established allegation that Appellant was repatriated by the British Government.
7. That any letter of recall that made no provision for Appellant’s familys return, amounted to an Order on the Appellant to abandon his family in foreign land which will constitute breaches of the rights of the Appellant and of the Appellant’s wife and children under Sections 34 and 37 of the Constitution of the Federal Republic of Nigeria.
Ground Four: The Appellate Court Justices erred in Law when they held.
“With respect … his copious submission on Exhibit D12 was a lot of noise about nothing the declaration of the Appellant as a deserter on 29/12/2008, was part of a process done in part implementation of the recommendations of the Board of Inquiry To show that the Board of Inquiry recommendations were not final, Section 172(4) of the Armed Force Act states that the evidence given before the Board of Inquiry shall not be admissible against a person in a proceeding before a Court martial and Section 173(3) states that the recommendation shall become spent where the person involved subsequently surrenders or is arrested…
PARTICULARS OF ERROR
1. It was common ground that Appellant was in his official residence at all material times and was in touch with his office in London.
2. The Board of Inquiry proceedings was a quasi-judicial proceeding that tried the Appellant in absentia on the presumption that he could not be reached and reached decisions that effectively terminated the Appellants commission.
3. The Board of Inquiry proceeding were in breach of the Appellants right of fair hearing, as it was a proceeding with a foregone conclusion, that had the irreparable consequences.
4. The findings of the Board of Inquiry temporary achieved the same result as the Court Martial and laid the foundation for the Court Martial, the temporal termination of the commission of the Appellant as a Soldier, and the attendant denial of the Appellant of the financial resources to defend himself and other consequences that reduced his capacity to
5. There was no credible evidence that Exhibit P15, the document relied on for the conviction, was ever served on Appellant.
Ground Five: The Learned Justices of the Appellate Court erred when they upheld as valid the construction of and/or the provision of the Armed Forces Act in so far as it purportedly authorizes an ex parte judicial process against a person who can be reached without serving him summons and giving him the opportunity to defend himself.
PARTICULARS OF ERROR
i. Under Section 36 of the Constitution of the Federal Republic of Nigeria, a person is entitled to be heard in all judicial and quasi-judicial proceedings determining his rights and obligations.
ii. The proceedings of the Board of Inquiry and its implementation effectively removed the Appellant from the Army and terminated his commission.
iii. Notwithstanding the provisions of Section 172(4) of the Armed Force Act that precludes admissibility of the recommendation of Board of Inquiries, the core-content of that recommendation and its implementation was the premises of the Court Martial trial with evidence of Appellant being declared a deserter, his commission terminated, removed from the Army records, arrested by a junior officer, rejabbed, given half salary and in custody as a prisoner-awaiting trial, all before the Court, and key part of the Evidence.
iv. The fact that Section 173(2) of the Armed Force Act states that the recommendation of the Board becomes spent on arrest or surrender, does not fully revert the grave consequences of the implementation of the recommendation, as the Appellant permanently lost his rights and privileges thereafter, adjudged guilty and the trial just for him to prove his innocence.
Ground Eight: The learned Appellate Justices erred in Law when they upheld conviction over a period when the unchallenged facts show contradictions in the way the Military authorities related to the Appellants Status in the Army over that period.
PARTICULARS OF ERROR
1. The Appellant was convicted of desertion for the period – 21/2/2008 to 2/2/2010.
2. The 4th Prosecution Witness, Chief of Staff to Commander Corps of Army Finance & Administration, testified that PW10 (DAFA) met and interviewed Appellant on 3/3/2008 & Exhibit D2. Letter of Deferment for his attendance of Senior Officer Course 30 as a serving Soldier was served on the Appellant.
3. The Exhibit D12, letter from Defence Adviser, declared the Appellant a deserter from 2912/2008 as against 21/2/2008 when the Judgment held he was in desertion.
4. The Exhibit P15, signed by PW2, declared the date of deployment (by extension, date of desertion) to be 21/2/2008 even as PW2 claimed he served the Appellant Exh P.15 on that 21st February 2008 and advised Appellant to relocate his family back to Nigeria, with no corroborating evidence of such service before the Court, given Appellants denial of service and evidence of PW4.
I agree with the Respondent that some of the particulars are mere narratives that add nothing to the Grounds of Appeal, and that the issue of whether the Appellant was served with Exhibit P15 or not, was not raised at the Court of Appeal, therefore, it is a fresh issue.
However, despite their superfluous Particulars, Appellant’s complaint in those Grounds of Appeal is that the letter of transfer, Exhibit P15, which he allegedly disobeyed to constitute desertion, was not served on him, and that he was denied a fair hearing.
The law is that once the error complained of is identified and properly oriented in the ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice – See Best (Nig.) Ltd. V. B.H. (Nig. Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC, and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 257, where this Court per Nweze, JSC, made the point clear as follows:
It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in
the interest of justice. Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 Indeed, this Court, recently stamped its infallible authority on this current posture. Abe V Unilorin (2013) LPELR-20643; (2013) 16 NWLR (Pt 1379) 183.
In this case, the Appellant’s complaint to the Court of Appeal was that the GMC had erred in law when it proceeded to convict him on charges not known to law. He did not raise the issue concerning service of Exhibit P15, and the Court of Appeal did not deal with it.
Nonetheless, he is waving a banner of fair hearing in this Court, and an allegation of lack of fair hearing involves a question of law that can be raised at any stage, even at this Court for the first time. The Objections to Grounds 3, 4, 5 & 8 are, therefore, overruled.
Appellant also submitted in his Reply Brief that his Issue 2 takes its life from Grounds 1, 2, 6, 7 & 9″, which complain thus –
Ground One: Court of Appeal erred in law and thereby occasioned a miscarriage of justice when she sustained conviction and sentence of the GCM passed upon [him] upon charge(s) that were unknown to law.
a. The charge proffered against [him] was that of desertion in that he failed to join his unit from 21/2/2008 to 2/2/2010 with the intention at the period of so failing or thereafter of being permanently absent from duty without leave.
b. The aforesaid charge as framed is not covered by the aforesaid Section 60 of the Armed Forces Act Cap A 20 Laws of the Federation 2004 under which the Appellant was Court martialed.
c. The Court of Appeal was patently in error to have sustained the findings, conviction and or sentence of the General Court Martial upon allegations or charges that were-unknown to law.
Ground Six: The learned Justices of the Court of Appeal erred in Law when they held.
The Appellant has not challenged these findings on this Appeal and not even the conclusion drawn there-from that he never had intention of rejoining the N.A. through his unit NASFA until he was arrested on 2nd February 2010.
PARTICULARS OF ERROR
1. The Appellants case was that he held on to his official residence in London whilst asserting that he was still seized of his diplomatic office and status until he hands over to a diplomat.
2. The Appellant was in touch with different levels of his superiors, pleading his case for time before rejoining his unit and for proper arrangements to hand over his diplomatic office and for his family to be bought home, as his defence of having acted bona fide in defence of his rights, was an issue in the appeals.
3. The Appellants passport was seized as the Federal Government continued to assert their right and control over the Appellant, was in context before the Appeal Court.
4. The Appellant was issued Emergency Traveling Certificate (ETC) on 20/1/10, evicted on 26/1/10 and returned to Nigeria with the ETC and a ticket paid for by the Embassy and he accompanied the Medical Equipment of the Late President of Nigeria on the 28/1/10, put to issue any finding that he was in desertion.
5. That Appellant held diplomatic status until his return (Exhibit P13)
Ground Seven: The Learned Justices of the Court of Appeal erred in Law when they upheld the conviction for desertion when what was proved was insubordination to constituted authority.
PARTICULARS OF ERROR
1. The Appellant was in a disclosed Federal Government accommodation in touch with his bosses’ at all relevant times, as manifest in all Exhibits, particularly Exhibits P13 and P14.
2. The Appellant was, questionably but innocently, asserting his rights to remain in his diplomatic posting until he hands over to a diplomat and provisions made to relocate his family to Nigeria.
3. The Appellant was the only Lt Colonel sent to Senior Staff Course 30 in the Armed Forces Command and Staff College with his juniors and his protests only got him reprimand and ordering around by officers of his rank who he saw as a group in a gang-up with their god-father to remove him from his diplomatic posting, because his god-fathers had left the army.
4. The Appellant by his defence, raised a claim of right to what he considers a maliciously inspired recalled based on the falsehood that he was repatriated.
5. The appellate Court never considered the defence that [He] had bonafide claim to remain in diplomatic posting as an office different from his military status and or that his re-posting was malicious which was why three of the prosecution witnesses were directly involved at different stages to his trials, or [He] had a right to insist on proper handover to a person fit for that position by his entry status.
Ground Nine: The Learned Justices of Court of Appeal erred in putting a lot of weight on Exhibits P15, P16, P17, P20, P22, P24 and P25 and the evidence of the key witnesses, in reaching the conclusions that the officers acted purely “in course of their respective duties to defeat the Appellants defence of absence of evidence of intention to be permanently absent from duties, notwithstanding that the crux of the Appellant’s case was that he was a victim of a gang up and blackmail to get him out of his choice posting and these witnesses were his direct competitors, his course mates, same rank and same Corps (NAFC).
PARTICULARS OF ERROR
1. The Appellant in para. 6.34 of his Final Address argued: “we submit that the entire case of desertion was contrived.
2. Ground five of the Notice of Appeal, alleged that the Judge Advocate at the Trial, was quickly appointed Director of Legal Service to the Army Council, which enabled him to review the case for the Army Councils Approval with prejudicial consequence to the Appellant.
3. That on 3/3/08, PW2. Col. Akerele (then) who signed Exhibit P15, and course-mate of the Appellant then as Chief of Staff to Nigerian Army Finance Corp. and of the same Lt. Col. Rank, became Deputy Commandant NASFA and he promptly advised the commandant to commence desertion proceedings to issue Absentee Report, which Report he, PW2 issued and tendered as Exhibit P16.
4. 3 days later on 6/3/08, the same PW2 issued AWOL Report Exhibit P17 dated 10/3/08.
5. One week later, PW2, was instrumental to the setting up of Col. B.A. Taiwo investigative panel, which convened on 2/4/2008 and found the Appellant guilty of desertion, in his absence.
6. PW4 Col. Adeyemi Adetayo then Lt. Col.. of Finance Corp. signed the letter of 10/6/2008 Exhibit P20 sent to Army Administration for implementation of Investigative Panel Report.
7. On 16/10/08, the same PW4 wrote Exhibit P21 to Nigerian Army Finance Corp. for implementation of the Investigation Panel Report by publishing the Appellant as a deserter and removing him from the database of the Army.
8. PW4 on directive on 4/10/10 rejabbed Appellant after his arrest, without paying him his accumulated salaries indicating that the removal from data base actual interlocutorily, terminated the commission of the Appellant and his re-jab did not entitle him to the salaries denied during termination, or return him to status quo ante.
9. Maj. Gen. Airhiavbere, the Commander of Army Finance Corp. PW10, testified to his being visited by his predecessor Maj. Gen. Toun to persuade him to rehabilitate the returning officer, and he gave evidence that the Appellant was deported as the prelude to his recall, giving credence to the allegation of god-fatherism being at the crux of the matter between prosecution witnesses and the Appellant.
10. The Appellant testified how PW10 as new DAFA, whom he went to, for advise, told him he was in trouble, and that he was deported for drunk driving and that he will be prosecuted for drunk driving, because PW10 falsely alleged that Appellant divulged official information to former Chief of Army Staff Gen. Azazi, and that Appellants alleged that the two God-fathers Gen. Toun and Azazi cannot save Appellant from the impending doom for being deported for drunk driving.
11. PW10, Maj. Gen. Airhiavbere testified that [he] was re-patriated on disciplinary grounds, showing prejudice by PW10 even before the alleged desertion started, as that was not the case before the Court.
Exhibit P32 contains the false allegation of indictment/repatriation preceding allegation of desertion.
Apart from Ground 1, which complains that the Court of Appeal erred by sustaining his conviction and sentence based on a charge that is unknown to law, which is what the Appellant raised there, the complaints in the other Grounds of Appeal are targeted at the trial before the GMC, and where they are not, they are supported by incongruous Particulars that are unconnected to the Grounds.
Ground 6 may have referred to the Court of Appeal’s finding, but the Particulars made no mention of how, where and when the said findings of the GCM were challenged. The Appellant merely narrated his case as presented before the GCM, without more.
As for Ground 7, on his being convicted for a lesser offence, the Appellant never raised the issue that he may have been guilty of insubordination to constituted authorities,” and not desertion, before the two lower Courts, and they never
addressed that issue. Thus, he cannot complain to this Court that the Court of Appeal erred in law when it upheld his conviction for “desertion when what was proved was insubordination to constituted authorities”.
Apart from the fact that he is raising a fresh issue on Appeal for which leave of Court is required; Ground 7 is a ground of fact or mixed law and fact because resolving the question raised thereby involves examining evidence and drawing inferences therefrom, and he also requires leave from the Court of Appeal or this Court. As the Respondent rightly submitted, the Appellant never sought or obtained the requisite leave, and so. Ground 7 is incompetent.
Ground 9 is in a worse shape than all the Grounds of Appeal the Respondent objected to; the Appellant’s complaint is that the Court of Appeal “erred in putting a lot of weight” on some Exhibits, but he merely carried out a review of his case in the Particulars of Error, as if he was addressing the GCM. He made no reference to any pronouncements by the Court of Appeal on the said Exhibits. There is no flesh on the bones of Ground 9, and it is incompetent.
Be that as it may, even if all the Grounds that the Respondent objected to are incompetent and struck out, the Respondent is not challenging Ground 2, which complains that “the decision of the Court of Appeal is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence”. What’s more, the Appellant submitted in his Reply Brief that the said Ground 2, being an omnibus ground of Appeal, can also sustain the Appeal, citing Abisi V. Ekwealor (1993) 6 NWLR (Pt.30) 643, and I agree.
The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608 SC.
In this case, the complaints in the said Grounds of Appeal are, more or less, against the evaluation of evidence at the GCM trial. However, the Appellant alleges that the Court of Appeal failed to take into account evidence adduced in his favour in its Judgment, which is enough, in my view, to have the Appeal heard on its merit.
In the circumstances, the Objection is of no moment in this Appeal.
Coming to the Appeal itself, the Appellant formulated two Issues for Determination from the said Grounds of Appeal: that is:
1. Was the Appellants fundamental right to fair hearing breached by the pre-trial proceeding and the trial Court?
2. In the light of the circumstances of this case, was the up-holding of the conviction by the Appeal Court justifiable in law?
Obviously, Issue 1 raises a red flag as it made no reference to the Court of Appeal, and worse than that, in his submissions on same, Appellant had nothing whatsoever to say on the Court of Appeal.
Citing Pam v. Nasiru Mohammed (2008) 16 NWLR (Pt.1112) 1, he submitted that determining whether a Party has been denied his right of fair hearing or not, is to be adjudged by the nature and circumstances surrounding the case. He divided the process and proffered arguments on “five chain-major-inter-wined stages:”
a. The service or otherwise of the key letters to the Appellant.
b. The Investigative Panel to find out the circumstances leading to [his] absence that resulted in the issuance of the Absentee Report.
c. The first indictment proceedings that issued the AWOL Report that indicts the Appellant for AWOL.
d. The second indictment proceedings that indicts the Appellant for DESERTION or ordered serious and far reaching sanctions.
e. The Court Martial, which was the final trial Court.
His arguments on these “processes spanned from pages 6-15 of his brief of Argument. He focused completely on his ordeal in the hands of his colleagues and senior Army Officers, and, thereafter, he concluded as follows at page 14 to 15 of his
Brief of Argument
If, [he] harbored any fears that his tormentors had any influence in the trial process, this fear was heightened when the Judge Advocate, who played the key role in the trial, was promptly made Director Legal Services to Army Council, who reviewed the case for Army Approval of the conviction. This J.A., who at page 374 of Records called an isolated mistake of Counsel throughout the trial, attempts at importing:
Virus into the trial”, showing his strong views against the Defence. This same man with a formed opinion on the matter, was appointed and did review the trial for confirmation by the confirming Authority. This was ground five of the Grounds of Appeal to the Court of Appeal and it did challenge the independence of that Court Martial and Approving Authority and re-enforces [his] contention that the Ex-parte trials that led to declarations of AWOL and DESERTION were all part of desperate gang-up to get him out of his commission. In the light of the above, the declarations of AWOL and Desertion were all void and the Court Martial was void for being based on this void proceeding and even more the independence of that Court Martial/Approving Authority was seriously in question in the circumstances of the case and any doubt should be resolved in favour of the Appellant.
Under Issue 2, Appellant referred to what “Desertion means, as defined in Black’s Law Dictionary 7th, Ed., which provides for desertion in (peace) Civil Circumstances and in a state of war or during military operations. He explained what this entails and submitted that he was charged for desertion under Section 60 (1)(a) of the Armed Forces Act, which narrowed the desertion in issue to the first arm of desertion; desertion in a state of Peace.
Furthermore, that under the said Section 50 (1) (a) of the Act, the key elements are that (1) he failed to join the Armed Forces; (2) for a disclosed period; and (3) with the intention at the time of his first failing or the intention formed thereafter or in the alternative (to permanent intention to abscond), intention to remain permanently absent from duty without lawful authority.
On the first ingredient, he submitted that the said Exhibit P15 was an incomplete letter as the Order of the COAS authorizing the transfer purportedly attached, was not attached and the omission was key because of the alleged gang-up and victimization, a key defence before the Court; that even if Exhibit P15 was a valid order the failure to make provision for the return and resettlement of [his] children amounted to ordering [him] to abandon his spouse and children in a foreign land as homeless destitute in breach of their constitution rights; that to constitute valid instructions for recalling him, provisions must be made to bring back his family, and that he was not served with Exhibit P15, and only got notice of its content for the first time upon the receipt of proof of evidence.
On the second ingredient, he argued that the evidence shows “consistent inconsistency in the relationship and status of how his bosses related to him; that the meetings he had with relevant Officials negate the premise on which the desertion is based “that he disappeared and cannot be reached” and that desertion could only arise from the date he was ejected from Nigerian Premises.
On the last ingredient, he submitted that Nigeria not being in a state of war and he, not being posted to Combat Operational command, the fact that he moved back into his official residence, which is part of Nigerian Territory in law, and the fact that he was in contact with his boss and successors, who had the means and capacity to arrest him in their premises, destroys any suggestion that he formed, the permanent intention to desert that he raised his defence in Exhibit P1, which he set out in his Brief, as follows:
This case of desertion cannot be a true story because at the time I was so declared, I was in London trying to resolve the issue of allowances which has not been resolved, and to clear my name of certain allegations that I was deported by UK government, and un-authorized disclosure of official document to the former CDS using internet to steal the unit funds…there are no funds missing…this had been a trend for the pass (sic) twenty (20) years with similar allegations until the office is taken over (sic) from me in order to correct the allegation. I had wanted the handing over to my successor be property corrected (sic) the DAFA insisted that I was the only one who had been blackmailed …to ensure that I do not escape the charges, they (DAFA & team) must not allow me hand-over properly. For my information, he (DAFA, PPW10) had stood against my posting then and now that they DAFA’s then Superiors) are (sic) out of those post (sic) that they were using to protect me, I must face those charges whether it was a blackmail or not. He (PW10) had promised that I will never get another appointment in the NA and I will never
be promoted. For my information, he is going to nominate me for the course to shoe (sic) his seriousness about what he had told me. He said, I can carry it to any place. This implication of those allegations (sic as he meant threats) have far damaging consequences on me (sic) as a person and my career and also will be affecting my family as a whole especially my children. I had no other choice than to find away to ensure that I handover properly. In the alternative is to stay back in the UK to wait for the deportation letter if it is true.
He also argued that the conclusion that he formed the intention of permanently leaving the Armed Forces” is erroneous because:
a. He thought that the deferment of his nomination to the course would make authorities return him to his UK office or another office and communicated of the transfer and provision made for him to bring home his family.
b. Evidence showed he did not abscond from his official residence, but held on to it, asserting that his tour of duty had not yet terminated.
c. His Diplomatic Passport was taken by courier service supposedly to send to Licence office to Nigeria High Commission who seized it and refused to re-issue him with ordinary passport to enable him return notwithstanding his several appeals. A deserter in a foreign country is “a beast of No-Nation. Any person, who applies in his real name for passport, from the very office fully informed of his circumstances can never be inferred to have made up his mind permanently to desert, because that amounts to surrender to Federal Government, who can arrest him at any stage. He held interviews, meetings with the Nigerian Government in UK on his passport at a time, the same Government had declared he should be arrested, wherever he is found. The Nigerian High Commission premises are in International Law, part of Nigerian Territory.
d. A deserter is a fugitive he cannot go to the Embassy to finance and arrange his return, nor will he be entrusted with the duty and responsibility of conveying Medical Equipment of late President of Nigeria. A deserter will in disguise sneak into his country.
He further argued that the Court of Appeal missed the vital point that he was not served nor was he privy to Exhibit P15 that he was supposed to obey and paid no attention to his argument that “the entire case of desertion was contrived, which made it credit probative value to documents obtained by key witnesses, whose evidence should have been treated with suspicion and caution, citing Oguonzee V. State (1998) 5 NWLR (Pt. 551) 521, Ishola v State (1978) NSCC 499, Omotola V State (2009) 2-3 SC 7.
On its part, Respondent argued its Objection in its Issue 1, but it canvassed arguments on its Issue 2 – whether or not the Judgment of the lower Court dismissing Appellants Appeal is meritorious and sustainable? It submitted that the Court below made cogent findings but the Appellant did not challenge same either in the Notice of Appeal or his Brief, therefore, Appellant by necessary implications, veered off and missed the needful”: that rather than argue his Appeal on the substance of the said findings, he embarked on incongruous submissions predicated upon invisible fundamental rights, miscarriage of justice, etc. that his rehash of arguments as if the lower Court was a Court of first instance is improper; and that the arguments on issues that he embarked on were totally strange and a total disconnect between his arguments and the Judgment of the lower Court.
It further argued that the Appellant had a miss-step when it embarked on arguing issues that are unrelated, unconnected and spurious, especially on issues that had been resolved with finality, which were not challenged, and the said conclusions were omitted from being challenged vertically or horizontally, that the submissions challenging incompleteness of the letter of replacement never arose from the lower Courts Judgment; and that others relating to failure to make provisions for return and resettlement of his family, etc., are strange references that never emanated from the copious findings of the lower Court.
Citing Adimora V. Ajufo (1988) 3 NWLR (Pt.80) 1 @ 12 SC on the format of a good brief , and the essence of a legal argument, it argued that such arguments cannot abandon the main grouse as depicted in the notice of appeal and issue(s) formulated; that the Appellant having argued this Appeal on extraneous matters that the Judgment did not cover has not frontally challenged the findings of the lower Court; and that most entertaining is his arguments on a non existing five intertwined stages whereby the Appellant abandoned and/or neglected to address the main grouse of the Appeal and embarked on disconnected Issues.
It further argued that the Appellant misdirected the entire energy of the Appeal and thereby failed to discredit the
findings of the GCM and the lower Court; that unless and until it is shown that the findings led to a miscarriage of justice, or is perverse, this Court has always declined to reverse such a Judgment. Balogun v Amubikahun (1989) 3 NWLR (Pt. 107) 18. Akeredolu V. Akinremi (1989) 3 NWLR (Pt. 108) 164 & Ajeigbe V Odedina(1988) 1 NWLR (Pt. 72) 584 cited: that the unimpeachable findings of the lower Court, which he failed to dislodge, were predicated upon findings of fact that are “impeccable, flawless, decisive, sacrosanct and holy in nature, citing Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 350 @ 361 and Adimora V. Ajufo (supra): and being a concurrent Judgment of two lower Courts, he failed to show legal and factual reason to justify reversing the said Judgment.
The Appellant argued in his Reply Brief that the Respondent missed the thrust of the Appeal but chose to mock his arguments on Fundamental Right breaches as a figment of his imagination; that the cornerstone of our judicial system is built on the twin pillars of the Rule of Natural Justice expressed in the Latin Maxim “Nemo Judex in causa sua and audi alterem partem, codified as Section 36 of the Constitution; and under Section 36 (2) (a) thereof, Respondent is under obligation to send invitation to the Officer’s last place of address or office, notifying him to appear and make representations before he is declared a “deserter” or on “AWOL”, given the grave consequences that follow such declarations.
The Appellant, thereafter, referred to some of the Exhibits, testimony of some of the Respondent’s Witness, and the position taken by the Prosecutor, Defence, and Judge Advocate at the trial, to show that contrary to the Respondent’s submission, the” issue of human right was not an invisible figment of [his] imagination”.
This is totally unacceptable because as I said: “a reply brief is not a repair kit to put right any lacuna or error in Appellants Brief” – Mozie V. Mbamalu (supra).
A reply brief is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein; not to mention the introduction of fresh arguments that should have been made in the main brief. In effect, a reply brief does not open the door for the Appellant to take a second bite at the cherry; he will not be permitted to do so.
In this case, there is nothing that Respondent said in its Brief to warrant the Appellant’s reference in his Reply Brief to Exhibits, oral testimonies and final addresses of the Prosecution, defence and Judge Advocate, made or adduced at the trial before the GCM. He made no reference in his main Brief to the findings of the Court of Appeal that is related or connected to his allegation of lack of fair hearing; he will not be allowed to smuggle into his Reply Brief what he should have said about that allegation in his main Brief.
The bottom time, and I will not hesitate to say it upfront, is that this Appeal totally lacks merit. The Appellant had two hurdles to surmount when he approached this Court to provide him succour. He had to persuade this Court to reject the lower Courts’ findings predicated on the credibility of witness, which is a herculean task, and convince this Court to set aside the concurrent findings of the two lower Courts, which is an even more herculean task, because concurrent findings of two lower Courts are seen as sacrosanct.
In other words, this Court rarely upsets findings made by the trial Court and affirmed by Court of Appeal since the findings were arrived at after cross-examination and observation of witnesses by the trial Court – Adegbite V. State (2017) LPELR-42585(SC).
It is also settled that in order that such concurrent findings of fact may stand the test and enjoy respect, “they must be such that can justifiably be defended primarily from the available evidence” -see Mojekwu V. Iwuchukwu(2004) 11 NWLR (Pt. 883) 196 SC.
In this case, Appellant was charged with desertion contrary to Section 60 (1) (a) of the Armed Forces Act, which provides that:
A person subject to service law under this Act who: –
(a) Deserts; or
(b) Persuades or procures any other person subject to service law to desert, is guilty of desertion and liable, on conviction by a Court martial
to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
Section 60 (4) of the same Armed Forces Act further provides:
For the purposes of the Section and other Sections of the Act, a person deserts who:
(a) Leave any service of the Armed Forces or when it is duty to do so, fails to join the Armed Forces, with (in either case) the intention, subsisting at the time of the leaving or failure to join of formed thereafter, of remaining permanently absent from his duty or;
(b) Being an offer, enlists in or enters any of the other services of the Armed Forces without having resigned his commission, or being a soldiers, rating, aircraftsman, enlist in or enters any other services of the Armed Forces without having been discharged for his previous enlistments or:
(c) Absents himself without leave with intent to avoid serving at any place outside Nigeria or to avoid service or any particular service when before the enemy.
And reference in this section or other sections of this Act to desertion shall be construed accordingly.
In its Judgment, the Court of Appeal resolved the issue of whether the offence as charged is unknown to law against the Appellant. He complained in Ground 1 of his Grounds of Appeal that it erred in law when it sustained his conviction on charges unknown to law. But he said nothing about this complaint in his Brief of Argument, rather he veered off into a totally new issue that was not raised at the GMC or at the Court of Appeal that he was denied fair hearing because he was not served with Exhibit P15, redeployment letter.
It is the Appellant, who alleged that he was not served with the said Exhibit P15, and the onus is on him to prove that allegation, and establish that the failure to serve him with the said Exhibit P15 was detrimental to him, and it occasioned a miscarriage of justice – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282 at 306 SC, wherein this Court per Tobi, JSC, very aptly observed as follows –
Miscarriage of justice connotes [a] decision or outcome of legal proceeding that prejudicial or inconsistent with the substantial rights of the Party. [It] means a reasonable probability of more favourable outcome of the case for the party alleging it. The burden of proof is on the Party alleging that the justice has been miscarried. Learned counsel related the issue to fair hearing. Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in Favour of the victim. It cannot be construed outside the facts.
Accordingly, a Party alleging the breach must show clearly from facts of the case that the right is violated or breached.
In this case, the Appellant’s contention is that the said Exhibit P15 is incomplete since the order of the COAS authorizing his transfer was not attached, but the Court of Appeal observed as follows –
The Appellant admitted in his statement made to the Nigerian Army Military Police, tendered as Exhibit P1, and under cross-examination that he was aware of his redeployment to NASFA and the deployment was with immediate effect. The Appellant did not lead any evidence to contradict the case of the Respondent that he refused to join the School from 2/2/2008 to 2/2/2010. The Appellant admitted that instead of joining NASFA, he travelled back to London in March, 2008 and this was where he was until he returned to Nigeria in February 2010 and was arrested on his arrival. This court has no reason to disturb the finding of the GMC that the Appellant did not join his unit between 21/2/2005 and 2/2/2010.
Evidently, there is no question that the Appellant was aware of his redeployment to NASFA, but rushed back to London for reasons that were unacceptable to the Respondent. In the circumstances, I cannot see how the failure to serve him with the said Exhibit P15, occasioned such a miscarriage of justice that will sway this Court to interfere with the concurrent findings of the two lower Courts.
The Appellant smuggled in this Issue under the cover of his right to fair hearing, but it is not enough for him to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide in his favour, just for the asking. The position is that the appellate Court must be satisfied that the alleged miscarriage of justice is really substantial, not one of mere technicalities, which had caused no embarrassment or prejudice to the Appellant” – See Adebayo V. A.-G., Ogun State (2008) 7 NWLR
(Pt.1085) 201 SC, where this Court per Tobi, JSC, hit the nail on the head, as follows:
I have seen that Parties’ who have bad cases’ embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional prevision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
In this case, the Appellant also argued in the alternative that even if Exhibit P15 was a valid order, he had every reason to rush back to London and stay there with his family because the Respondent did not provide for the “return and resettlement’ of his children; and that obeying the order contained in Exhibit P15, would amount to abandoning his family “in a foreign land as homeless destitute. What has this got to do with the offence that he was charged with?
In arguing as he did, including that his recall from his juiciest posting in the Army, is due to gang-ups and victimization by other senior officers because his godfathers had retired from the Army, the Appellant lost sight of the fact that it was the Respondent that deployed him to London as the DDA, Finance in the first place and the same Respondent redeployed him to NASFA. The Appellant said he joined the Army in 1978; was commissioned an Officer on 4/10/1989; became a Captain on 4/10/1993; a Major on 4/1/999; and a Lt. Col. on 4/1/2004. He further stated as follows in his Brief – His official record describes him as “possessing initiative and drive and never gave up on issues relating to soldiers welfare until such issues were satisfactorily resolved”. At 68 NARHY, he was acknowledged for his credibility and hard-work. In HQ TRAD0OC he was described as an officer with integrity and most of the attributes expected of a finance officer. He held Award of Force Service Star.
Despite his record as an excellent officer, the GCM found that
The Accused had contemptuously reneged on the oath he took while being commissioned that he would go wherever and whenever ordered by land, sea or air and would obey all the commands of those placed above him with the way he chose not to report to NASFA. It is unthinkable that any reasonable officer of the rank of Lt Col, who is mindful of his career in the NA would behave the way Accused did.
The Court of Appeal reinforced this point when it observed that –
The Appellant admitted very clearly in his statement Exhibit P1 and in the letter that he wrote on his deserter status, Exhibit D13, that his reasons for returning to his former posting in London in March, 2008 and for staying put thereat until 1/2/2010 were personal and that he chose to stay on in London despite his salary and allowances being stopped by the Nigeria Army since 2008 and despite his being advised by the Defence Adviser that his actions would jeopardize his career. These show that the Appellant was obviously witling to forgo his career to satisfy personal reasons for staying in London.
The Appellant took a solemn oath to go wherever and whenever ordered by Land, sea or air and to obey officers placed above him. And yet, when the chips were down, he chose to disobey the order of the Respondent that would take him out of what he considered the only good posting in his entire career. The facts of this case speak for themselves, and what they say loud and clearly is that the Court of Appeal was right to affirm the GCM’s findings that the Appellant had the intention to remain permanently absent from duty without lawful authority, which is indisputably desertion”.
Without question, this Appeal lacks merit and is dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the concurrent findings of the General Court Marshal which held at 1 Division officers Mess, Kaduna in which the appellant was charged for an offence of Desertion contrary to the provisions of Section 60 (1) (a) of the Armed Forces Act Cap A 20 Laws of the Federation 2004. The Court of Appeal, Kaduna Division further upheld the decision of the General Court Marshal in its Judgment delivered on the 27th June, 2013 in a unanimous decision.
I have had the advantage of reading the Judgment of my learned brother Augie, JSC, I agree with his reasoning and conclusion. The appeal is hereby dismissed by me.
OLUKAYODE ARIWOOLA, J.S.C.: I read before now in draft the lead judgment of my learned brother Amina Augie, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal.
KUMAI BAYANG AKA’AHS, J.S.C.: I had the privilege of reading in draft the judgment of my learned brother, Augie JSC wherein the appeal was dismissed for lack of merit.
By order of Lt. Gen AB Dambazau (then Chief of Army Staff) NA/COAS/GI/39 dated 6 April 2010 a General Court Martial was convened for the trial of the appellant who was charged with desertion contrary to Section 60 (1) (a) of the Armed Forces Act which provides as follows:-
“60 (1) A person subject to service law under this Act who –
(a) deserts; or
is guilty of desertion and liable on conviction by a court – martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”
He was found guilty of the offence charged and sentenced to dismissal from the service of the Nigerian Army. The sentence was confirmed by the appropriate Superior Authority on 3 December, 2010. The appellant appealed against the verdict reached by the GCM in his Notice of Appeal dated 31 October, 2011. The appeal was dismissed by the Court of Appeal, Kaduna on 27 June 2013 and this prompted the further appeal by the appellant to this Court in his Notice of Appeal dated 27 August, 2013. An Amended Notice of Appeal containing 9 grounds was filed on 3 March, 2016 which the respondent objected to with the exception of ground 2.
My learned brother, Augie JSC meandered through the labyrinth of objections raised and dismissed most of the objections in order to deal with the merit of the appeal.
I agree with my learned brother, Augie JSC’s reasoning and conclusion that this appeal essentially is concerned with the concurrent findings of fact reached by the General Court Martial and the Court below and unless the appellant is able to show that the findings made by the General Court Martial and affirmed by the Court of Appeal led to a miscarriage of justice or are perverse, there will be no justifiable reasons to reverse such finding. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 12. This Court will hardly set aside the findings of the lower Courts which are predicated on the credibility of witnesses. It is the trial Court that sees the witnesses testify and notes their demeanor and from that assesses their credibility. See:Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt.137) 230; Ishola v. U.B.N. (2005) 6 NWLR (Pt.922) 422; Onisaodu v. Elewuju (2006) 13 NWLR (pt.998) 517; Anyegwu v. Onuche (2009) 3 NWLR (Pt.1129) 659 and Agu v. State (2017) 10 NWLR (pt.1573) 171.
The appeal lacks merit and it is accordingly dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Augie JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
All the issues submitted for determination of this appeal have been admirably resolved in such a way that I have nothing useful to add. I find the appeal lacking in merit and same is hereby dismissed.
Anse Agu Ezetach, Esq. with him,
Perpetua U. Onu, Esq. –For Appellant