Whether a Junior Officer Is Liable For a Wrong Resulting From Obedience to an Order From a Superior Officer?

CASE TITLE: OSENI v. NIGERIAN ARMY (2022) LPELR-58815(CA)

JUDGMENT DATE: 31ST OCTOBER, 2022

PRACTICE AREA: MILITARY LAW

LEAD JUDGMENT: BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on conviction for the offence of manslaughter by a General Court Martial.

FACTS:

This is an appeal against the judgment of the General Court Martial (GCM) held at the Command Officers’ Mess, Asokoro, Abuja.

On 28/8/2018, the Appellant was arraigned along with 3 other Accused persons before a General Court Martial of the Nigerian Army in a joint charge of Manslaughter contrary to Section 105 (a) of the Armed Forces Act, Cap. A20 LFN 2004. On 23/2/2017, the Appellant as the Field Officer on duty at the Army Headquarters Garrison was instructed by one Lt Col AU Usman, (N/10518), the Commanding Officer Admin, on the instruction of his superior, the Chief of Staff, Brigadier General Obot, to ‘manage’ one Lcpl Benjamin Collins (now deceased), who was alleged to be instigating a revolt and trying to stage a jailbreak in the Guard room and had been violent and refused to enter his cell. The Appellant sought the assistance of Major OU Osawe, Capt SE Amosun and 2LT NB Dogary, who were all charged along with the Appellant, and instructed them to ‘manage’ the deceased under his supervision.

The Appellant had also requested his Commanding Officer Admin, Lt. Col. Usman who testified as DW2, to be allowed to double or hunch the deceased soldier which request was granted. The drill was carried out on the deceased under the supervision of the Appellant. However, regrettably after the drilling the deceased was later confirmed dead at the Defence Headquarters Medical Centre, and an autopsy was subsequently conducted on his body to find out the cause of his death, which autopsy was carried out by one Dr. K. N. Ezike, a Senior Consultant Anatomical Pathologist with the Asokoro District Hospital, Abuja.

At the trial before the GCM, the Respondent as the Prosecution called six witnesses who testified as PW1, was one WO Idris Tanimu 95NA/40/3772; PW2, was one Sgt Dan Zaria Mohammed 98NA/46/2133); PW3, was one Dr. Onuche Lawrence Onuche; PW4, was one LCpl Joshua Christiana 15NA/74/4071F; PW5, was one Lcpl Ayogu Boniface 2010NA/65/7073; PW6, was one Dr Kelvin Ezike. The Respondent tendered several documents, which were admitted in evidence and marked as Exhibits B1 – B10 and closed its case. In his defense, the Appellant testified as DW2 and called one witness, Lt Col AU Usman, (N/10518), the Commanding Officer Admin, who testified as DW2 and closed his defense.

The other Accused persons also testified in their defense and closed. The defense tendered two documents, which were admitted in evidence and marked as Exhibits D1 – D2. At the conclusion of trial, and after the summing up by the Judge-Advocate, the GCM delivered its judgment on 7/2/2020, in which it found the Appellant guilty of the offence of manslaughter and sentenced him to 10 years imprisonment, which conviction and sentence were subsequently confirmed by the Army Council, hence this appeal.

ISSUES:

The appeal was determined on the following issues:

“1. Whether the GCM lacked the jurisdiction to try the Appellant?

2. Whether the GCM was right to have convicted the Appellant for the offence in the charge having regard to the facts and evidence on record?”

DECISION/HELD:

The appeal was allowed. The decision of the General Court Martial was set aside and the Appellant was discharged and acquitted.

RATIOS:

• MILITARY LAW – GENERAL COURT MARTIAL – Where does the General Court Martial derive its power/jurisdiction
• MILITARY LAW – CONSTITUTION OF COURT MARTIAL – Importance of strict compliance with the law in the constitution of Court Martial
• MILITARY LAW – CONSTITUTION OF COURT MARTIAL – At what instance will a Court Martial be duly constituted
• MILITARY LAW – OFFENCE(S) – Essential ingredients the prosecution must prove to establish the offence of manslaughter under the Armed Forces Act
• MILITARY LAW – ARMED FORCES – Whether a junior officer who acted in compliance with a superior order would be held liable for any resultant wrong which occurs in obedience to such superior order
• JURISDICTION – JURISDICTION OF THE COURT OF APPEAL – Whether the jurisdiction of the Court of Appeal extends to issue of confirmation of the conviction/sentence/discharge/acquittal by the Army Council under the Armed Forces Act