CASE TITLE: IBRAHIM v. NIGERIAN ARMY (2025) LPELR-80706(SC)
JUDGMENT DATE: 14TH MARCH 2025
PRACTICE AREA: MILITARY LAW (SCANDALOUS CONDUCT OF A MILITARY OFFICER)
LEAD JUDGMENT: ABUBAKAR SADIQ UMAR, J.S.C.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on Military Law.
FACTS:
This appeal is against the decision of the Court of Appeal, Jos Judicial Division, delivered on the 5th of March, 2015, which affirmed the judgment of the General Court Martial held at HQ 3 Division, Maxwell Khobe Cantonment, Jos Plateau State, delivered on the 4th of September, 2012, wherein the Appellant was cashiered (dismissed from service dishonorably) by the Nigerian Army.
The Appellant was a colonel in the Nigerian Army. He was tried and convicted by the General Court Martial (GCM) on a two-count charge of illegally cohabiting with the wife of PW2, Abdulahi Usaini (a military warrant officer and a junior officer), between the 5th and 13th of October, 2011, and procuring an illegal marriage with the said wife of PW2 between the 22nd and 29th of October, 2011, which amounts to scandalous conduct of an officer punishable under Section 91 of the Armed Forces Act, Cap A20 LFN, 2004. The case of the Respondent against the Appellant before the GCM was that the Appellant was the 2iC of the Recce Battalion in Badagry, Lagos State, and the PW2 served under him around the year 2006. During this service, the Appellant got to know PW2’s family. Since then the Appellant developed an amorous relationship with PW2’s wife. From then on, PW2 and his wife started having problems in the family. The Appellant took PW2’s wife to the Whispering Palm Swim Hotel in Badagry. The Appellant sent money to her, which PW2 intercepted. PW2’s wife changed her car, and she went on umrah, all from money suspected to have been given to her by the Appellant. Thereafter, the Appellant was transferred to Ilorin, Kwara State, while the PW2 was transferred to Kainji in Niger State, where he settled his family. PW2’s brother-in-law told PW2 twice that it was the Appellant who was causing the problem between him and his wife and that PW2 should divorce his wife if he did not want to lose his employment with the Nigerian Army because PW2 was in competition over the wife with the Appellant, a superior officer. On one occasion, while PW2 was away in Jos, his wife took permission to visit her family in Kano. The Appellant’s wife called PW2 around the time that his wife was with her husband in Ilorin and asked PW2 to warn his wife to leave her husband alone.
In one of her sober moments, the PW2’s wife also disclosed to him that the Appellant requested her to divorce the PW2 and to marry him. Subsequently, PW2 was deployed to Baga, an operation field in Borno State, while the Appellant was transferred to Minna, Niger State. The PW2’s wife called him one day to say that she could not stay in Kainji because she did not know anybody there. The PW2 appealed to her to stay because Baga is an operation field; the family could not settle there. PW2’s wife took her son to TRADOC Minna and cohabited with the Appellant between 5th and 13th October, 2011, at the Appellant’s official quarters in Minna under the guise of seeking medical care for the son, who was sick. PW2 also got a call that his wife was no longer in Kainji. When PW2 called his wife, she told him that their son was sick and that he should send money. PW2’s wife told him not to bother coming home; he should just send money, but PW2 insisted on coming home.
When PW2 got home on the 13th of October, 2011, he did not meet his wife and son.
They both later came in the evening of the same day. The PW2’s wife claimed that she went to the Minna military medical facility on referral from Kainji, but it was confirmed that the medical facility at Minna is of the same status as the Kainji facility. PW2 later relocated his wife and children to Kaduna to stay with his brother-in-law, who had earlier advised him to divorce the wife, and thereafter returned to Baga. While at Baga, sometimes between October 25 and 29, 2011, PW2 got information that the Appellant and his wife had been married in Kano. PW2 called his wife to confirm, but the wife denied she had married the Appellant. She said that PW2 remained her husband.
PW2 went to Kaduna to ask his brother-in-law, with whom he kept his family. The brother-in-law said the Appellant came and went away with PW2’s wife and children.
That he also heard the Appellant and PW2 had a marriage, but he did not endorse it and was not present when the marriage was solemnized. The PW2 thereafter went to Minna, where he met his wife and children living with the Appellant. PW2 attempted to take his children, but he did not succeed due to the refusal of the wife, supported by the Appellant. The PW2 thereafter put up a petition to the authorities of the Nigerian Army against the Appellant which resulted in setting up an investigation team and convening a General Court Martial for the trial of the Appellant.
The case of the Appellant is that during his service in Recce Battalion Badagry, Lagos State, his wife and that of PW2 met at the market, and from there, they became friends, and the two families developed a close relationship. He took the PW2’s wife to the Whispering Palm Swim Hotel in Badagry together with his own wife. He stated that the money he sent to PW2’s wife was a refund of money PW2’s wife lent his own wife. While they were together in Badagry, the PW2’s wife sometimes complained to him of her husband beating her, but he would always advise that she should endure because of her children. He admitted that he never, for once, discussed the issue of beating reported by the PW2’s wife with PW2. He said that he left Recce Battalion in Badagry with an unblemished record of service. He said that after leaving Badagry in 2008, he did not have any contact with PW2’s wife until he saw her in Kano in the year 2011. When he asked for PW2, the wife burst into tears. She told him that PW2 had divorced her. She requested him to marry her, and he agreed, and that is how they went ahead with the marriage.
He admitted that he did not call PW2 to find out from him if he truly divorced his wife because he knew PW2 would not be happy. He said he only provided accommodation for the PW2’s wife and son in Minna as a form of help.
After the hearing, the GCM found Appellant guilty of the offences charged. The Appellant was cashiered (dismissed from the service of the Nigerian Army dishonorably without entitlement to any pension or gratuity). His conviction and sentencing were confirmed by the Nigerian Army authorities.
The Appellant’s appeal to the Court of Appeal was dismissed; hence, his further appeal to the Supreme Court.
ISSUES FOR DETERMINATION:
The Court considered the following issues as raised by parties:
1. Whether the jurisdiction of the General Court Martial pursuant to Section 130 of the Armed Forces Act, Cap A20 Laws of the Federation 2004, extends to questions of Islamic personal law as to warrant the trial General Court Martial making pronouncements on the legality or otherwise of an Islamic marriage?
2. Whether the provisions of Section 91 of the Armed Forces Act, Cap A20 Laws of the Federation 2004, are not inconsistent with the provision of Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and thereby void by virtue of Section 1(1) and (3) of the same Constitution of the Federal Republic of Nigeria, 1999, as amended?
3. Whether, having regard to the totality of the evidence on record, the Lower Court was right in affirming the conviction of the Appellant by the General Court Martial for the offence of scandalous conduct of an officer under Section 91 of the Armed Forces Act, 2004?
DECISION/HELD:
The appeal was dismissed.
RATIOS:
- MILITARY LAW – GENERAL COURT MARTIAL – Whether the General Court Martial ceases to have jurisdiction over the discipline of a military officer under Section 130 of the Armed Forces Act where a question about the validity of an Islamic marriage arises
- CONSTITUTIONAL LAW – CONSTITUTIONAL VALIDITY OF LEGISLATION – Whether Section 91 of the Armed Forces Act is inconsistent with Section 36(12) of the 1999 Constitution (as amended)
- MILITARY LAW – GENERAL COURT MARTIAL – Nature of a General Court Martial proceedings- JUDGMENT OF COURT – Whether the judgment of the Court must involve a consideration of all correspondences/documents/evidence tendered by the parties
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