Rejoinder: Should Lawyers Robe Before Court-Martial

By Col BU Okorie (rtd) Esq.

My attention has been drawn to an article entitled “Should Lawyers Robe Before Courts-Martial”, written by one Obioma Ezenwobodo and dated 23rd Sept 2019, published on Thenigerialawyer Blog. He narrated a story of how the Chief of Army Staff, Lieutenant General Tukur Buratai directed civil lawyers appearing before a General Court Martial, convened by him to try Major General P.A Falola and Major General I. Sani, to be robed. He said that the development had raised concerns on the appropriateness of lawyers appearing before court-martial in robes.

He cited the Rules of Professional Conduct for Legal Practitioners (RPC) 2007 extensively to conclude that court martial is not one of the courts where lawyers will appear in their robes. He said that the case of Abdullahi v Nigerian Army (2009) ALL FWLR (Pt. 500) 667 made it clear that the court martial is a tribunal like Code of Conduct Tribunal, and others. He also opined that Section 6 (5) of the 1999 Constitution (as amended) does not include court martial as a superior court of record. He quoted the court as stating in the case of Abdullahi v. The Nigerian Army (supra) as follows:

“It must be borne in mind that the General Court Martial cannot be equated to the regular courts where strict procedures are required. It is no more than a tribunal and at best it can be equated to jury trial…” Thank God he did not tell his readers: that the RPC 2007 should supplant the Armed Forces Act, Cap A20 LFN, 2004 (AFA) and regulate the life and practices of the Armed Forces of Nigeria including their trial procedure.

that the court martial is not of co-ordinate jurisdiction with a high court in Nigeria, and that appearance before court martial is compulsory for every civil lawyer.

The case of Abdullahi v. The Nigerian Army (supra), rightly says that the court martial is unique and jury trial, it does not say that it is a tribunal neither does the 1999 Constitution (as amended) nor any known judicial authority ever states that courts-martial is not a court of record, after all the Black’s Law Dictionary, 9th Edition p.407 defines a court of record as:

A court that is required to keep record of its proceedings.
A court that may fine and imprison people for contempt.

The fact is that the court-martial created by the AFA is a court of record sharing co-ordinate jurisdiction with a high court in Nigeria and appeals flow there from to the Court of Appeal and up to the Supreme Court of Nigeria.

The writer ought to have cited relevant extant legal authorities starting with the authority that authorizes civil lawyers to appear and practise in court martial in the first place. This authority is rule 79 of Rule of Procedure Army, (RPA) 1972 made applicable mutatis mutandis to Nigerian Military Law by Section 181 of AFA. The Rule provides as follows:

“79 (1) subject to these Rules the following persons shall be allowed to appear as counsel at a court-martial;

every person who is qualified as a barrister-at-law or a solicitor according to the law of England or Northern Ireland;

every person who is qualified as an advocate or as a solicitor according to the law of Scotland; and with the consent of the convening officer, any person who is recognized by him as having in any Common-wealth country or territory outside the United Kingdom rights and duties similar to those of a barrister-at-law or solicitor in England, and as being subject to punishment or disability for a breach of professional rules”.

Footnote b to this Rule provides that:
“Counsel as defined in this rule will wear robes when appearing before courts-martial”.
It is the AFA with this Rule that constitutes the grundnorm of our Military Law in Nigeria. It is the Law that regulates the activities of the Armed Forces and prescribes who tries accused personnel, who prosecutes or defends them, and in what dressing such persons must appear. The Chief of Army Staff’s directive therefore was neither ‘baseless in law’ nor ‘offensive’ to the relevant ‘subsisting legislation’, especially the one just quoted above. He was merely obeying the law when he convened the court martial and directed civil lawyers appearing before the court martial to be robed. This directive is equally in conformity with paragraph 33 p.17 of a pamphlet entitled “Military Law II” Guide to Harmonized Practice and Procedure, published prior to 2004 by the Directorate of Army Legal Services. So contrary to the writer’s averment, the Chief of Army Staff never acted utra vires his powers by directing civilian lawyers appearing before the court-martial to be fully robed. It is therefore unlearned to opine that the Chief of Army Staff’s directive is ‘baseless’ and it is absolutely wrong to say that “Nowhere in the AFA or the RPA is the Chief of Army Staff, or any other Convening Officer, authorized to prescribe the dress code of civil lawyers appearing before a Court-martial”.

Affirming the relevant co-ordinate status courts-martial share with some courts mentioned at Section 6 (5) of the CFRN 1999 (as amended), an appellate court has stated in the case of Anyankpele v. Nigerian Army(2000) 13 NWLR (Pt. 684…209 as follows:
“Judicial powers of the Federation of Nigeria are vested by virtue of Section 6 of the 1979 Constitution in the courts to which the section relates. The section relates to the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of a State, the Sharia Court of Appeal of a State and such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws. The General Court Martial and the Armed Forces Disciplinary Committee are the likes of courts also envisaged by section 6(5) (g) of the Constitution. (Pp.225-226, paras H-E).”

Furthermore, it should be noted that members of the court martial including the prosecutor and defence counsel all appear in a special dress called number 4 dress during court-martial; so it would not ‘amount to a desecration of Lawyers robe for civil lawyers to appear in the Lawyers’ robes before court-martial headed by men in khaki (uniform)’ if it will not amount to a desecration of the court martial number 4 dress for civil lawyers to appear before the court-martial in casual civil suite. Besides, appearance in court-martial by civil lawyers in the first place is a demonstration of the fair-trial disposition of court-martial which should be encouraged by the lawyers appearing in their professional working dress.

Furthermore, court-martial is a court of record by the Black’s Law Dictionary definition above and not an inferior court just because the Rule of Procedure for Legal Practitioners does not apply to it in toto. The Military is a quintessence of a professional Organization governed by the Military Law, it cannot be governed by the RPC 2007 since the AFA does not govern the Civilian Lawyers in their civil courts. Assuming without conceding that the RPC 2007 intends to regulate courts-martial trials and its proceedings, the fact remains that generalia specialibus non derogant, i.e., the general provision of the RPC 2007 does not derogate from or repeal the specific provisions of the Rule of Procedure Army 1972 above cited.

This rejoinder appreciates the hidden admiration of Military Law by our learned friend. Surprisingly however, his said write-up is inundated with words of acrimony and derogation rather than those of compliments and friendliness, or is he unwittingly revealing that his romance with courts-martial proceedings was merely prompted by some mercenary motive? Nevertheless, my advice is that like every admirer of a foreign Language, let him know that the right time to criticize the language constructively is after first understudying the indigenous speakers through adequate pupilage to acquire knowledge of the theory and practice of the language in order to understand, speak and properly use the language. Besides, most lex specialis including Military law require bottom-up approach for proper learning and understanding and not the other way round.

Col BU Okorie (rtd) Esq, Renowned Military Author, and Practitioner., 08035695883