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Nigerian Air Force v. Shekete.

THE NIGERIAN AIR FORCE

V

WING COMMANDER T. L. A. SHEKETE

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN (Presided)

MICHAEL EKUNDAYO OGUNDARE, JSC

SYLVESTER UMARU ONU, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

NIKI TOBI, JSC (Read the Lead Judgment)

SC. 362/2001

FRIDAY, 13TH DECEMBER, 2002

APPEAL - Briefs of argument - Need to follow guidelines laid down in the Rules of Court

APPEAL - General Court Martial - Appeal therefrom to Court of Appeal  Failure to seek leave to appeal - Effect

APPEAL - Leave to appeal from decision of General Court Martial to Court of Appeal and leave to appeal out of time or for extension of time to appeal - Whether they are synonyms or procedures of a similar or like content

COURT - Relief not sought by a party - Whether can grant or set up a different case for the parties

MILITARY LAW - Armed Forces Decree No. 105 of 1993 as amended by the Armed Forces (Amendment) Decree No. 15 of 1997, sections 183  and 184 thereof - Import of

MILITARY LAW - General Court Martial - Appeal against decision thereof

-  Leave to appeal from decision of General Court Martial to Court

of Appeal and leave to appeal out of time or for extension of time to appeal - Whether they are synonyms or procedures of a similar or like content

MILITARY LAW - General Court Martial - Appeal therefrom to Court of Appeal  - Failure to seek leave to appeal - Effect

MILITARY LAW - General Court Martial - Appeal therefrom to Court of Appeal - When incompetent

PRACTICE AND PROCEDURE - Relief not sought by a party - Whether court can grant or set up a different case for the parties

STATUTE - Armed Forces Decree No. 105 of 1993 as amended by the Armed Forces (Amendment) Decree No. 15 of 1997, sections 183 and 184 thereof - Import of

Issues:

1.            Whether the applications and/or prayers in the appellant’s motion dated 30th November, 1998 satisfied the condition precedent to the hearing of his appeal against the decision of the General Court Martial as provided under section 183 and 184  of the Armed Forces Decree, 105 of 1993 (as amended ).

2.            Whether the jurisdiction of the Court of Appeal to hear and determine the appeal against the judgment of the GCM was not ousted by the appellant’s (now respondent) failure to first obtain leave of the Court of Appeal as required under section 183  of the Armed Forces Decree 105 of 1993 (as amended ).

Facts:

Wing commander T. L. A. Shekete, the respondent in this appeal, was the 4th accused at the General Court Martial, bearing the acronym, GCM. He was arraigned along with eight other Air Force officers on 22nd July, 1996 on seven counts.

The case of the prosecution can be briefly stated. One of the nine officers charged raised requisition for cash in the total sum of N10,000,000.00 (Ten million naira). The sum was withdrawn from the bank account of the appellant. The money was handed over to one of the officers accused along with the respondent. The 6th accused in his written statement admitted receiving the money. He mentioned the various amounts distributed to the officers charged along with him. The officers included the respondent who was alleged to have been given the sum of N500,000.00 (five hundred thousand naira) out of the N10,000,000.00. In corroboration of the evidence of the 6th accused, Warrant Officer Paul Tungan, PW4, said that he was given some money by the 6th accused in an envelope to put inside the boot of the respondent’s car.

The respondent, in his written statement (exhibit 11) denied conspiring with any person to share the N10,000,000.00. He said that during the period, that is around the first week of April, 1996, he was preparing to go to Saudi Arabia to perform the 1996 Hajj and so he seldom went to the office. He said that it was when he reported back to the office because he could not go to Hajj that he learnt about the N10,000,000.00 matter. He denied collecting any part of the alleged N10,000,000.00. The respondent was not found guilty of counts 1 and 2. He was found guilty of counts 3 to 7  and sentenced to a total of 23 years incarceration.

Dissatisfied, Wing Commander Shekete appealed to the Court of Appeal. That court allowed the appeal. The court made the following order in the last paragraph of the judgment:

“On the whole, my conclusion is that this appeal is meritorious. It is allowed. I set aside the judgment appealed against. In its place, I make an order striking out the charge against the appellant. I make an order discharging and acquitting the appellant on the counts brought against him.”

Dissatisfied, the appellant has filed this appeal to the Supreme Court. The Supreme Court considered the provisions of sections 183 and 184 of the Armed Forces Decree No. 105 of 1993 as amended by the Armed Forces ( Amendment) Decree No. 15 of  1997.

Section 183 “Subject to the following provisions of this part, an appeal shall lie from decisions of a Court Martial to the Court of Appeal: Provided that an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a Court Martial involving a sentence of death.”

Section 184 “(1) Leave to appeal to the Court of Appeal shall not be given except in pursuance to an application in that behalf made by or on behalf of the application (sic) and lodged, subject to subsection (2) of this section, within forty days of the date of promulgation of the finding of the court martial in respect of which the appeal is brought, with the Registrar of the Court of Appeal being an application in the prescribed form and specifying the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.

(2)          An appeal against a decision involving a sentence

of death shall not be entertained by the Court of Appeal unless the appeal is lodged by or on behalf of the appellant, within ten days of the date of promulgation of the finding of the court martial in respect of which the appeal is brought, with the Registrar of the Court of Appeal in the prescribed manner.

(3)          Rules of court may provide that, in such circumstances as may be specified in the said rules, any such application or appeal which is lodged with such person (other than the

Registrar) as specified in the said rules shall be treated, for the purpose of subsection (1) of this section, as having been lodged with the Registrar.

(4)          The Court of Appeal may extend the period within which an application for leave to appeal is required by paragraph a (sic) of subsection (1) of this section to be lodged, whether that period has expired or not.

(5)          In considering whether or not to give leave to appeal, the Court of Appeal shall have regard to any expression of opinion made by a judge advocate, if any, who acted at the court martial that the case is a fit one for appeal, and, if any such expression is made, may give leave to appeal.

(6)          Whether (sic) the Court of Appeal dismisses an application for leave to appeal it may, if it considers the application to have been frivolous or vexatious, order that any sentence passed upon the application (sic) in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the court dismisses the application.”