The Court of Appeal Rules, 2021: Procedural Impact on Appeals Emanating from Court Martial to the Court of Appeal

Background:

Despite being an apex disciplinary organ of the Armed Forces, the decision of a court-martial is not absolute but subject to review by the Court of Appeal. This is explicitly provided by section 240 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as altered), which provides thus:

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the High Court of a State, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of a State, the Customary Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of a State, and decisions of a court martial or other tribunal as may be prescribed by an Act of National Assembly.”

The import of this provision as it relates to courts-martial was judicially noted in the case of Nigerian Army v. Yakubu (2013) 8 NWLR (Pt. 1367), where it was stated that the Court of Appeal has exclusive appellate jurisdiction over decisions of the General Court Martial and that such jurisdiction is not subject to the whims of any other quasi-judicial body or outfit.

By the clear provisions of section 248 of the CFRN, 1999 (as altered), and section 197 of the Armed Forces Act, the President of the Court of Appeal may make rules of court for regulating the procedure and practice to be followed in the Court of Appeal. By these far-reaching provisions, the President of the Court of Appeal enacted the Court of Appeal Rules (CAR), 2016, and for the first time made specific provisions regulating appeals emanating from decisions of courts-martial and other tribunals. Order 18 of the CAR, 2016, contains provisions for appeals emanating from decisions of the Courts Martial and tribunals to the Court of Appeal, which is in pari materia to the extant Order 18 of the CAR, 2021.

Procedure for Appealing Against Courts Martial Decisions:

Order 18 Rule 1 (1) of the CAR 2021 provides that a person desiring to appeal to the Court against any decision of the court below shall commence his appeal by sending to the registrar of the court below or other person or body imbued with or who performs such functions and powers as the registrar of a regular court a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given.

Also, Order 18 Rule 2(1) of the CAR, 2021, provides for the signing of notice of appeal and other notices by the appellant himself or his legal representative, except as stipulated otherwise. Under Order 18 Rule 3, an appeal shall be deemed to have been brought when the notice of appeal has been filed at the registry of the Court Martial or Court of Appeal. Order 18 Rule 4 states that an application to the Court of Appeal for an extension of time within which notices may be given shall be in Form 7 in the Second Schedule. The Order also provides that any person making an application for an extension of time shall send it to the Registrar of the Court of Appeal, together with the proper form of such application, a form duly filled, notice of appeal, or notice of application for leave to appeal, or notice of application for extension of time to appeal, appropriate to the ground or grounds upon which he desires to question his conviction or sentence, as the case may be. Order 18, Rule 13(1), states that where there is a further appeal to the Supreme Court, the Registrar of the Court of Appeal shall, as soon as possible after the compilation of the record of appeal, serve upon every appellant who has duly given a notice of appeal and paid the fees fixed by the Registrar to cover the record of the appeal or whose fees have been waived a copy of the record.

In addition to the principles embodied in Order 18 Rule of the CAR, 2021, governing appeals from courts martial to the Court of Appeal, the Armed Forces Act (AFA) 2004 contains copious provisions regulating the same. Section 184(1) of the AFA provides that leave to appeal shall not be granted except in pursuance of an application made by or on behalf of the appellant and lodged within forty (40) days of the date of promulgation of the finding of a Court Martial in respect of which appeal is brought with the Registrar of Court of the 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. It is to be noted that the observance of this provision of the AFA is mandatory, and failure to do so may lead to the setting aside of an appeal on the ground of incompetence. This was decided in the case of Nigerian Air Force v. Shekete (2003) 2 SCM at 79, where the respondent appealed against the decision of the Court Martial at the Court of Appeal without observing the provisions of sections 183 and 184(1) of the AFA. The Supreme Court, in setting aside the decision of the Court of Appeal based on non-observation of the provisions of the AFA, found per Niki Tobi, JSC, after quoting sections 183 and 184 (1) of the AFA, stated thus:

“As it is, the requirements of sections 183 and 184(1) of Decree No. 105 of 1993, as amended by Decree No. 15 of 1997, are clear. By section 183, leave of the Court of Appeal must be sought before an appeal can lie from a Court Martial to the Court of Appeal. Leave is, however not necessary if the decision of Court Martial involves a Appeals sentence of death…”

“Section 184(1) leans on section 183. The subsection gives the time within which an appeal should be lodged. It is forty days from the date the Court Martial promulgated its findings. In other words, an appeal lodged after forty days of the promulgation of the findings of the Court Martial will be incompetent.”

Further, section 184(2) of the AFA states that the Court of Appeal shall not entertain an appeal against a sentence of death unless the appeal is lodged by or on behalf of the appellant within ten (10) days of the date of the 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. It is humbly submitted that the 10 days given for an appeal against a death sentence to be lodged is not just too short but will invariably cause hardship to the right of a convict to appeal. Death sentence being the highest capital punishment an accused can be convicted of, the convict should enjoy the same 40-day time limit, or even more, for which an appeal against his conviction should be lodged. It is expected that the appellate courts would easily grant an extension of time in an appeal against a death sentence.

Section 184(3) of the AFA states that rules of court may provide that in some specified circumstances, as may be specified in the rules, any application or appeal that is lodged with such person (other than the registrar) shall be treated as having been lodged with the registrar.

Section 184(4) of the AFA gives the Court of Appeal the power to extend the period within which an application for leave to appeal can be made. Section 184(5) of the AFA provides that in considering whether or not to give leave to appeal, the Court of Appeal shall have regard to any opinion of a Judge Advocate who participated in the Court Martial that the case is a fit one for appeal and, in this case, may give leave to appeal. Section 184(6) of the AFA stipulates that when the Court of Appeal dismisses an application for leave to appeal on the basis that it is frivolous or vexatious, the court may order that any sentence passed upon the applicant 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.

Sections 185–202 of the AFA make further copious provisions regulating the powers of the Court of Appeal to determine appeals arising from Courts Martial decisions. An appeal emanating from a decision of a Court Martial proceeds to the Court of Appeal and may subsequently proceed to the Supreme Court. Section 187 of the AFA provides that the determination of any appeal or other matter that the Court of Appeal has the power to determine shall not be final. The final court to determine an appeal against a decision of the Court Martial is the Supreme Court of Nigeria. This is statutorily provided in section 202 of the AFA, which provides that an appeal shall lie from the decision of the Court of Appeal to the Supreme Court.

Conclusion:

The extant provisions deal with appeals from courts-martial to the Court of Appeal relating to the procedure for initiating appeals, seeking leave and extension of time, and defining the powers of the Court of Appeal to determine the same. They detail procedural steps to successfully seek the review of the decision of a courts martial, which is a specialised court.

Obioma Ezenwobodo LL.M
Lead Partner, Resolution Attorneys
Pioneer Chairman, Nigerian Bar Association, Garki Branch, Abuja (2022/24)
Author of the book ‘Law and Practice of Court Martial in Nigeria’ that addresses and provides clarity to complex issues relating to the practice of court martial.
obiomadan@gmail.com

Source: loyalnigerialawyer