Concurrent jurisdiction and the accused's right to elect the forum

Nasiri Tijani, Uhochukwu Charles Kani, and Femi Olorunyomi have written an interesting article titled Arrest, Investigation, Trial of Persons Subject to Service Law by Civil Courts in Nigeria and Their Right to Elect Forum for Trial, 9 Afr. J. Crim. L. & Jurisprudence 25 (2024), in response to the high-profile case of Brig. Gen Jafaru Mohammed vs. EFCC & Anor. (2022) LPELR 58538 (CA). The authors' abstract follows:

Under the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004, persons subject to service law can be tried for two categories of offences: Military offences and Civil offences as defined under the Act. Whereas only the Court-martial can try for both Military and Civil offences, the Civil courts can try a person subject to service law for Civil offences only. The failure of the military to arraign a person subject to service law for a Civil offence will not prevent the Attorney-General of a State or the Attorney-General of the Federation from arraigning the person before the Civil court. Does a person subject to service law have a right of election not to be tried in a civil court for a civil offence? To what extent is the right of election to be tried for an offence a condition precedent to the jurisdiction of the Civil court to try persons subject to service law? Must allegations of commission of an offence be reported to the Commanding Officer before a Civil court can assume jurisdiction in a case against a military offender? This article x-rayed the jurisdiction of Court-martial and Civil courts to try persons subject to service law and the recent case of Brig. Gen. Jafaru Mohammed v EFCC & Ano. which held that a serving military officer cannot be invited, interviewed, interrogated, arrested, tried under general criminal laws of Nigeria, unless he elects the forum for trial. The authors posit that this decision was arrived at per incuriam as it fails to recognise the concurrent jurisdiction of the Court-Martial and the Civil courts to try persons subject to service law for civil offences as provided in the Act.

They conclude:

It is beyond argument that a person subject to service law may be tried by a Court Martial and a Civil Court for commission of a civil offence. A civil court lacks jurisdiction to try a person subject to service law for a Military offence created by the Armed Forces Act. Where the person subject to service law is tried first by a civil court for a civil offence, and is convicted or acquitted, he cannot again be tried by a Court Martial pursuant to section 36 (9) of the Constitution. The condition that a commanding officer under section 117 of the AFA must afford an opportunity for election to a person subject to service law to elect whether to be tried summarily by the commanding officer or court- martial does not extend to trial by a civil court. There is no such duty upon a judge. The condition precedent for the trial and or investigation for a judicial officer as established in Nganjiwa v Federal Republic of Nigeria does not apply to the investigation and trial of a person subject to service law. The EFCC by virtue of sections 6 and 7 of the EFCC Act does not require the consent, permission or does not need to notify a commanding officer under which a person subject to service law is serving before it commences the investigation of such a person. It was therefore wrong for the Justices of the Court of Appeal to have arrived at the conclusion that section 123 of the AFA must be complied with by the EFCC. Consequently, the researchers recommend that the court should seize any opportunity in future where issues such as discussed herein arise to restate the  correct position of the law that it is not a condition precedent that before a person subject to service law can be tried by the civil court that such a person must be put to his election and that section 123 of the AFA does not apply to law enforcement officers or prosecutorial agencies.