CHAPTER ONE

INTRODUCTION

1.1 GENERAL BACKGROUND OF THE STUDY

Over the ages, man has always lived together and interacted in one form or the other with one another. These interactions have become more complex and sophisticated with the evolution of modern societies and organizations. The competing demand for scarce resources and self-actualization which sometimes put man in confrontation with one another hence, the necessity for the regime of law to curb man‟s existence, and ensure a peaceful society .

Law, as defined by Black‟s Law Dictionary is a rule of law conduct, procedure or custom, recognized by a community as binding or enforceable by authority . Although, it is difficult to have a definition of law that is all encompassing and generally accepted, this definition has been adopted because it captures the essence of this research. There is no objective organization or community that has no set or body of laws which regulate the conduct of the society and ensure the greatest good for the greatest number if strictly and impartially enforced. It also creates social stability and harmonious living.

The concept of justice is also closely related to the strict application of law. Justice has been defined by the Encarta Dictionary as Fairness or reasonableness especially in the way people are treated, decisions are made and Law enforced Thus, justice encourages the maintenance and administration of fairness, the impartial adjustment of conflicting claims and assignment of rewards and punishments . The notion of justice is embedded in the administration of criminal justice system. The criminal justice system is the procedure saddles with the efficient application and just adjudication of all violations of the law in an organization . It is concerned with the judicious and procedural application of law without fear, favour or affection.

The rule of law on the other hand is the foundation for liberty and order . It emphasizes the supremacy of due process. It respects all and allows us to organize our lives, plan our future and resolve disputes in a rational way; it also forbids arbitrariness. The rule of law ensures that the guilty should not go unpunished .

One of the tenets of the rule of law is that a man must not be punished without due trial. However, some people are of the opinion that the rule of law is not compatible with the military system . Dressler, SP quoting Charles De Gaulle, stated that, “Those who of their own volition joined the military have mortgaged their liberty and the right to choose where to go and what to do”. However, while the military tenets demand total obedience to orders, authority and hierarchy, it is not true that the notion of justice fair play and the rule of law are alien to the military. The problem lies in its application, by Military commanders at different levels, who administer justice according to their whims and caprices . There are cases of flagrant disregard of the rule of law and the principles of fair hearing who have tended to paint the picture that the Nigerian Military was averse to the rule of law. For instance, in the case of Anyankpele v. Nigerian Army The appellant, a brigadier General in the Nigeria Army was charged for Disobedience to Standing Order, contrary to section 57 (1) of the Armed forces Decree and Conduct Prejudicial to Good

Order and service Discipline contrary to section 103 of the

Armed Forces Decree. He was convicted by the court Martial. On appeal to the court of Appeal, the decision was quashed because the order contravened was neither published nor brought to the attention of the accused officer.

Also in Karim v. Nigerian Army The appellant was a Lieutenant Colonel and military stores depot commander. Part of his duty was the control and supervision of all stock coming into the depot by way of their delivering and issuance. He was arrainged for a General court Martial upon a convening order stealing and making of false documents. The Court of Appeal quashed the decision of the General court martial on appeal, on the ground that one of the members of the General court martial was junior to the appellant. It could be safety adduced that the rule of laws and its accompanying tenets can be applied in Nigeria military justice system.