Recently, some military personnel faced court-marshal and were sentenced to death. This generated a lot of controversy as many commentators point to the circumstances that warranted the soldiers action. In this interview, one of the outstanding military lawyers in Nigeria, Paul Okohue who retired as a soldier in 1991 and immediately delved into private legal practice examines the issues. He also spoke on judicial corruption, award of silk, hierarchy of courts and others to Joseph Onyekwere and Emmanuel Badejo

There are those who believe that civil courts are not competent to handle military cases. Do you share this standpoint?

Yes, civil courts are not competent jurisdictionally to handle military cases.  This is the reason why the Court Martials are in place to try military offences.  Hon. Justice Adamu Galinje JCA said in R/Adm. Francis Agbiti vs. Nigerian Navy that the Armed Forces Act is a law applicable to the members of the Armed Forces and that the Court (Civil Courts) must be careful in reading into the law and the rules of procedure inherent in the conduct of affairs of the members of Armed Forces to avoid the breed of indiscipline and bring about the destruction of established chain of command.  But what I will suggest is that cases coming on appeal either to the Court of Appeal or Supreme Court from Court Martials should have members of the Armed Forces as Assessors to direct the courts on the laws, rules and traditions as applicable in the Military circles.  For instance, the Supreme Court had held that a Judge Advocate in a Court Martial is a prosecutor; the assessors would have been able to direct otherwise, or when the same Supreme Court held in R/Adm. Agbiti that a Major General in the Army who attended the same training with R/Adm. Agbiti in the Nigerian Defence Academy (NDA) who were also running the same seniority was Junior to Admiral Agbiti because the promotion of Adm. Agbiti was published about five days before that of the Major General.  That was the basis of setting the Judgment of the Court of Appeal aside.  Clearly in my view, an Assessor in the case would have been able to direct the court appropriately as to the traditions and practices in the Armed Forces as they relate to officers who passed out together from NDA but in different services and what obtains in their promotion prospect especially if none of them looses seniority.

What is your take in the recently concluded Court Martial that sentenced some soldiers to death?  Do you think they will be executed?

I will say that the Court Martial that sentenced the soldiers was right in the sentencing hoping that the charges were proved as required by law.  The only sentence for mutiny under S. 52(1) of the Act is death sentence. What people do not know is the fact that the sentence by the Court is a mere recommendation.  Until the relevant authority confirms it, it will remain a recommendation.  The relevant authority expected to confirm the sentences of the soldiers is the Service Chief and in this case the Chief of Army Staff.  I heard that some concerned citizens are already at the Court of Appeal contesting the verdict.  I will say that it is premature to go on appeal when the sentence has not been confirmed.  As to the question whether the soldiers would be executed, I will say that we are no longer under a military regime.  It is my belief that they will not be executed.  The confirmation of the sentence by the relevant Service Chief, that is the COAS, is not the end of the road for the soldiers.  This is because there is still a provision in the Armed Forces Act to be complied with, which is section 153 of the Act.  The section requires the approval of the President of Nigeria for the execution to be carried out. I hold the view that the soldiers will not be executed for the simple reason that we are in a democracy and the person at the helm of affairs in this country is a listening President with a humane heart.  Most of the soldiers involved seem to be below 25 years of age.

Some say court-martial is a superior court of record while others differ. What is the constitutional position on this?

Although, the constitution says appeal from Court-martial lies with the Court of Appeal, with leave, unfortunately, the Constitution itself, when naming courts of superior record did not name Court-martial as one of the courts of Record.  Furthermore, the Constitution says only those courts mentioned should be regarded as courts of record. So there appears to be a contradiction. What we see today is that you find some lawyers taking decisions of a court-martial for a judicial review at a Federal High Court. The question now is, can a court, which does not have an appellate jurisdiction over court martial review its decision? In Ibitoye against the Nigerian Navy, the convicted officer wanted a Judicial Review of the decision of a Court-martial that was properly constituted.  It was rather unfortunate that the trial judge did not rule on that issue, which both parties’ Counsel had joined issues.  At a seminar organised by the Nigerian Army in Abuja, I raised that issue. A Supreme Court Judge at the programme clearly said it was wrong.  The judge said though a court-martial was not formally named in Section 6 of the Constitution as superior court of record, a court-martial is indeed a court of record.  But as soon as he left, the matter was revisited and some held a different view, saying a Federal High Court can review a court-martial decision.  I am still looking for a way to test that position in court up to the Supreme Court for a proper determination. Personally I do not see what robs the court martial as Court of record when it has the power to sentence any serviceman to death as we have seen in the mutiny case just concluded; it has the power of life imprisonment and other terms of imprisonment.  What else is required to make the court a superior court of record?  I am of the view therefore that the constitution should be amended to bring in this missing provision.

There has been a controversy over whether senior lawyers should be given recognition above their juniors in court. On which divide are you?

One of the challenges in the legal profession is that of the age-long tradition of seniority at the Bar. Seniority in the bench and that of Senior Advocates are waxing strong.  Outside these two categories, seniority is relegated to the background. Except on very rare occasions, judges respect their seniors in the Bench.  This is the reason why a judge appointed 20 years ago cannot be appointed Chief Judge in a state where a senior judge of over 25 years is present and still sitting. The challenge we have as ordinary lawyers is that there appears to be no more recognition of seniority at the bar outside the SANs.  When I started practice in the late 80s, judges would always ask counsel of 20 years and above to mention their cases out of turn. It is unfortunate that this is not the case right now. This is not the case right now and it is rather unfortunate!  I must give credit to one of the judges at the Federal Capital Territory High Court Kuje before whom I have had the privilege of appearing.   Once you enter his court you complete the court list.  The columns include your name, party you are representing, your phone number and your year of call to the Bar.  The completed sheet is thereafter passed on to him (the Judge) and he takes his time to call the senior lawyers according to their time or date of call to Bar after the SAN (if any) had taken their turn.  The result of most of the Judges’ action including the Justices of the Court of Appeal is that a legal practitioner of 25 years and above will have to wait patiently for a counsel called just six months ago to attend to his case simply because his case was listed far behind on the court list. In my view, the judges and justices at all levels should give the age long practice of seniority at the bar some purpose.  I reasonably believe that allowing the junior lawyers to listen to the presentation of Senior Lawyers will have some positive impact in the legal profession as they stand to learn from the experience of their senior colleagues.

Few weeks ago, some lawyers were honored with the rank of SAN. Are you in agreement with the process of getting that privilege?

The rank of SAN bestowed on legal practitioners, who have distinguished themselves at the Bar is a laudable programme.  It tends to separate the men from the boys.  Lawyers’ worth their onions will normally aspire to that rank. Haven said that, my disagreement has to do with one of the requirements of having to make appearances at the Supreme Court for a particular number of times, I am taking this position not because I have not done or incapable of doing any appeal at the Supreme Court.  On the contrary my chamber has in fact undertaken three separate appeals at the Supreme Court (all reported) between 2011 and 2012 i.e. R/Adm. F.E. Agbiti vs. The Nigerian Navy, C.T. Olowu vs. The Nigerian Navy and the third Lt. Patrick Dodo vs. The Nigerian Army with a Learned Friend.  Advocacy has taken flight because of our system of front-loading processes. I will like to suggest that appearances at the Supreme Court for any number of times should be retained but should not be over emphasized. Most of the cases are fought at the High Courts and the Court of Appeal.  There are a number of lawyers who have won their cases at the lower courts without the opportunity to appear at the Supreme Court. Some of the clients, especially the less privileged once might lack the resources to prosecute cases at the Supreme Court level.

So, what are you suggesting?

First, let me make an analogy here.  The Customary Court of Appeal in Edo State for example is so structured that one does not need to travel to Benin City. The panel moves round the different divisions and this takes justice to the people at the grassroots.  The same applies to the National Industrial Court. They have judges in various judicial divisions in Nigeria, but still accommodate visiting judges.  These are judges who are not too busy in their local divisions and find time to go to other judicial divisions like Lagos where there are pressures of work. What I am driving at is that the Supreme Court should consider setting up zonal offices, hold sessions there from time to time and return to base. It will help the masses seeking justice at the highest level.  And if this is done, the requirement that you have to appear at the Supreme Court for a particular number of times as part of the criteria for the award of SAN will be solved. A situation where the Supreme Court sits only in Abuja is creating a lot of injustice to the poor or middle class who have no money to hire a lawyer to pursue their cases in faraway Abuja. I do not know how a poor man will be considered to have had a fair hearing when he cannot prosecute his case to the highest court of the land for no other reason other than he is poor! As a lawyer of about 30 years standing, I have handled some cases up till the Supreme Court, but not everybody can afford the cost of pursuing his or her case to that level.

The outgoing Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar raised the alarm over the infiltration of corruption into the nation’s judicial system, how in your estimation has it affected the judiciary?

The alarm raised by the retired Justice Aloma Mukhtar is not new. Corruption is a serious threat, not only to the judiciary but also to the very fabric of the society.  It depends on how one looks at it.  Well, you know that the judiciary is one of the arms of government in Nigeria.  Nigeria is a country with different people from different social background, tribe and religion.  Nigeria is made up of its people and the people cannot be separated from Nigeria. However, the judiciary as an arm of government is trying its best.  Just as I have said the judiciary is part of Nigeria.  You remember I told you that I served the Nigerian Army for a little less than 23 years.  The general belief is that as a soldier, you are trained to be brutal in your actions.  I make bold to say that the military system cannot change you from whom you really are. If you were good, you will probably become better and vice versa. The same thing applies to the judiciary.  In other words the judiciary is the product of the society. What we should know is that corruption in a system is not just about giving money to judges or justices to influence results.  No, it is more than that. If you influence the appointment of a judge or justices who in the true sense is not qualified, it is corruption.  If you confirm the rank of SAN on a legal practitioner due to external influences, it is corruption. At the Court of Appeal, we have three Judges sitting at the same time except when judgment is to be delivered. If the individual can influence the outcome of his case at the High Court, it may be difficult to do so at the Court of Appeal. At the Supreme Court we have a minimum of five Judges sitting at the same time.  Can you influence all of them?  It is likely impossible. Now, the judicial system is not made up of judges alone. Some judicial staffs are guiltier of this plaque called corruption.  For instance, a lawyer will file an originating process.  How long will it take to get to the Judge?  In the process of processing the filed papers to the Judge, a lot of things can happen.  My estimation of the impact of corruption is that it erodes confidence in the system either as a result of poverty because the litigant cannot access justice at the highest level or the right people are not placed in the position of authority to dispense justice.  This vice has made citizens uninterested in litigation.   Let me add that one of the tools a corrupt Judge uses to further truncate the administration of justice is the use of interlocutory applications especially exparte orders.  I am anxiously waiting for a time when the constitution will make it impossible for a party to appeal against interlocutory application rather the interlocutory and the substantive matter will be taken together on appeal so that the interest of justice can take the centre stage.

If you say that the authorities should discourage interlocutory appeals, don’t you think that would rob some litigants’ right to fair hearing?

What I am saying is that interlocutory applications should be taken on appeal to the Court of Appeal along with the substantive matter.  This is in the interest of justice also.  It has nothing to do with fair hearing.  As a practitioner who has been in the business for about 28 years now, I know as a fact that most of the interlocutory applications by some practitioners are meant to delay proceedings especially when the party knows that he has a bad case.  At times, it takes upwards of 5 – 6 years to propel this type of application to the Supreme Court.  In most cases, some are upheld while majority are dismissed and the matters remitted for hearing before another Judge.  By this time, the witnesses may have relocated or in some cases are dead! From my experience, most of the interlocutory applications are unnecessary and I am happy that some Judges are beginning to refuse some applications for stay of proceedings.

How do you find the legal practice after retiring from the Nigerian Army?

Legal practice for me after retirement has been interesting and eventful.  I started full practice in 1991 after serving the Nigerian Army for a little less than 23 years.  I was called to the Bar in 1986.  The beginning was rough but I did not allow it to dissuade me.  I tried to and actually adhered to the principles set by the late DG of the Nigerian Law School, Mr. Ibironke SAN, that you should not chase ambulances perpetually.  It must be for a period of not more than 9 months.  Chasing ambulances means making the magistrate court your permanent abode without aiming higher.  My initial focus was the court-martials set up by the Nigerian Army or Navy. Due to the existing cordial relationship I maintained with the Nigerian Army, I was made a retainer in partnership with my other legal practitioner friends with military background in the persons of Major A.E. Airende (Rtd) and Capt. J.A. Asemota (Rtd) both exceptionally vast in Military Law.

Before then, I was in retainership with the Nigerian Navy after the famous trial involving three very senior officers of the Nigerian Navy where I was a co-prosecutor.  One of them was discharged and acquitted.  We won the other two officerCON cases at the General Court-Martial and at the Court of Appeal.  One of the officers won at the Supreme Court on technical grounds. Another case of note was that involving a Brig. General who was the ECOMOG Commander in Liberia.  At the end of his tour of duty, he bought a fairly used SUV and shipped it to Nigeria.  There was this policy, which was said to have been reduced to a standing order by the Army High Command that those in the mission area in Liberia should not purchase for the purpose of exporting same, any movable items, especially vehicles.  I am sure the policy was put in place to ensure that looted properties were not brought to Nigeria.  It was a good policy, but it was not published as required by law to bring it to the notice of those who were supposed to act.  The Brig. General had no knowledge of the standing order or policy.  The Army authorities headed by Gen. Bamaiyi indicted him and he was severely punished.  The sentence was confirmed within five days irrespective of his rank and length of service and evidence before the court. Determined to see his freedom, I appealed to the defunct Armed Forces Disciplinary Appeal Committee headed by a Naval officer. At the end, one of the charges was dropped and the other upheld. Dissatisfied with the decision of the Committee, I went to the Court of Appeal, Lagos, where he was finally discharged and acquitted. This was my first case at the Court of Appeal and my excitement knew no bounds. On the whole, I have undertaken more than twenty cases at the Court of Appeal and numerous suits at both the Federal and State High courts. I derive great pleasure practicing the law.

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