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(2018) LPELR-44377(SC)

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(s)


NIGERIAN ARMY - Respondent(s)

Other Citations

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This appeal borders on criminal law and procedure.

This is an appeal against the decision of the Court of Appeal Ibadan division which upheld the decision of the General Court Marshal which held at 1 Division officers Mess, Kaduna.

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 General Court Marshall was convened by then Chief of Army Staff, Lt. General A. B. Dambazau, to try the Appellant for desertion, contrary to Section 60(1)(a) of the Armed Forces Act.

The General Court Marshall 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. The Court of appeal found that the appeal lacks merit and it was accordingly dismissed.

Further aggrieved, the Appellant appealed to the Supreme Court.

The appellant formulated two issues for the determination of the appeal as follows:
1. Was the Appellant's 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?
On the whole, the Supreme Court unanimously dismissed the appeal for lacking in merit.

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