The Supreme Court, at the weekend, in a unanimous decision set aside the two years? sentence passed on Captain Y. U. Zakari of the Nigerian Army, by a court-martial, on January 10, 1997.
It also upturned the concurrent findings of the Court of Appeal and the Nigerian Army Court Martial, which tried and convicted the army officer of a one count charge of conduct prejudicial to service discipline.
A five man panel of Justices of Supreme Court said that Zakari was tried and convicted by the Army Court Martial that lacked jurisdiction to try him in the first place.
Although, Zakari who was charged for gratification, admitted at the trial to have taken an envelope containing the sum of N40,000 from the Managing Director of Chayoma Ventures, who was being investigated, but the apex court found that the Court Martial was not properly constituted.
The conveying officer failed to set it up in line with Section 133 (1) of the Armed Forces Act, which stipulates that all members of the Court Marshal shall have seniority over the accused.
The apex court said the fact that a junior officer, Captain I.D. Bashir, with service number (N/9493) served as a member of the Court Martial that tried Zakari (N/9043) robbed the court of its jurisdiction.
In her lead judgment, Justice Mary Peter-Odili also agreed with the appellant counsel, Chief Theo Nkire, that it was immaterial whether or not the issue of jurisdiction was raised at the trial court. She said ?the issue of jurisdiction can be raised at any time even if at the Supreme Court for the first time.?
Justice Peter-Odili said that the argument of the respondents that the appellant had waived his right when he consented to the trial, ?would not stand in the light of what is required for the jurisdiction of a court properly constituted as it has become trite.?
The background facts of the case was that Zakari was deployed to Iponri NITEL Exchange, in Lagos, to investigate the allegation that certain NITEL lines were used for illegal (419) businesses
He arrested the culprit and handed him over to Odibo Issac the Customer Engineering Manager NITEl Iponri to investigate the file of the company and he left.
On his return, Odibo Issac presented to Captain Zakari an envelope containing the sum of N40, 000 from the Managing Director Chayoma Ventures. He took the money and in appreciation gave Odibo Isaac N5, 000.
They were arrested and Zakari claimed the N40,000 was an appreciation. Nigerian Army said the money was a gratification for the release of the arrested staff of Chayoma Ventures.
