OSAJI v. NIGERIAN ARMY
(2020)LCN/15288(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/G/133/C/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Between
BENJAMIN OSAJI APPELANT(S)
And
NIGERIAN ARMY RESPONDENT(S)
RATIO
WHETHER OR NOT ANY OBJECTION TO A CHARGE FOR ANY FORMAL DEFECT SHOULD BE TAKEN IMMEDIATELY AFTER THE CHARE IS READ TO THE ACCUSED PERSON
The law is trite that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure or the like, shall be taken immediately after the charge has been read over to the accused, and not later – Section 167-168 of the Criminal Procedure Act. See Osareren V FRN (2018) LPELR-43839(SC) 4-10, F-D; Agbo V State (2006) 6 NWLR (Pt. 977) 545, 577-578; Okaroh V State (1990) 1 NWLR (Pt. 125) 128, 136-137. PER SANKEY, J.C.A.
THE PRINCIPLE OF FAIR HEARING
It must be emphasized that fair hearing is not a magic wand to be waved about by Counsel in any and every situation to serve as an anchor in a stormy sea. Section 36(1) of the Constitution (supra) provides that –
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The Appellant has however failed to show how his right to fair hearing under Section 36(1) (supra) has been breached. Hence, Counsel should heed the several admonitions by the Supreme Court that the doctrine of fair hearing should cease to be abused by both litigants and Counsel just because a party is struggling to make out a case. See Inakoju V Adeleke (2007) LPELR-1510(SC) 231, per Ogbuagu, JSC; & MM Services Ltd V Oteju (2005) 5 SCNJ 100, 117, 118-119; (2005) 14 NWLR (Pt. 945) 517, per Tobi, JSC and Edozie, JSC. PER SANKEY, J.C.A.
ESSENTIAL INGREDIENTS TO ESTABLISH THE OFFENCE OF MANSLAUGHTER
The essential ingredients which must be proved to establish an offence of manslaughter under Section 105 (a) (supra) are:
a. The fact of the death of the deceased;
b. That such death was caused by the unlawful act of the accused; and
c. That the unlawful act of the accused was inadvertent or negligent leading to the death of the deceased.
In establishing each of these elements, the prosecution may employ one or more of the following modes of proof, i.e. confessional statement, circumstantial evidence and/or direct evidence being evidence from eyewitnesses – Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Igabele V State (2006) 6 NWLR (Pt. 975) 103. An accused person is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and which inadvertently caused death – Amayo V State (2001) 18 NWLR (Pt. 745) 251, 285(SC); Adamu V Nigerian Navy (2016) LPELR-41484(CA) 57. The question that arises therefore is, whether or not the ingredients of the offence of manslaughter under Section 105 of the AFA (supra) were established from the evidence led by the prosecution; and whether the guilt of the accused was proved beyond reasonable doubt as required under Sections 135 and 137(2) of the Evidence Act, 2011? PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the General Court-Martial sitting at 7 Division of the Nigerian Army Maiduguri, Bornu State delivered on December 15, 2017 by the President of the Court-Martial, Brigadier General G.O. Adesina and confirmed by the confirming authority, the Chief of General Staff, on May 25, 2018.
To set the scene for the determination of the Appeal, the brief facts leading to the Appeal are set out as follows:
The Appellant was enlisted into the Nigerian Army on May 5, 2009 as a Non-Commissioned Officer. Upon his induction into the Operation Lafiya Dole, he was deployed to Sector 2 Zabarmari Village as a Rifle Man. On May 14, 2016 at about 10:22 am, one 97NA/45/6205 Sgt. Innocent Ototo, the Guard Commander at the duty location where the Appellant was deployed, raised an alarm that his phone was missing. He accused three young lads, namely: Yakubu Isah, 13 years old (now deceased), Babale and Mustapha, of stealing the phone. The three boys were apprehended, detained and subjected to flogging and other forms of punishment. After enduring this for sometime, Babale and Mustapha pointed to the deceased as being responsible for stealing the phone. The deceased himself admitted to stealing the phone. However, after he was unable to lead the officers to where he kept the phone, he was subjected to more flogging and other forms of torture such as the rubbing of ground pepper all over his body. Subsequently, the young boy who had been subjected to flogging, etc since 1:00pm, died at about 6:00pm on the same day while still in the hands of these officers.
Therefore, the Appellant was jointly charged for the murder of the deceased along with 97NA/45/6205 Sgt. Innocent Ototo, before the General Court Martial. However, on September 11, 2017, Counsel for the 2nd accused applied for and was granted an Order for his client to be tried separately pursuant to Rule 39 of the Rules of Procedure (Army) 1972. Therefore, the Appellant was arraigned alone on a one-count Charge which reads:
“STATEMENT OF OFFENCE
Being a person subject to service law is charged with murder punishable under Section 106(b) of the AFA (Cap. A20), LFN 2004.
PARTICULARS OF OFFENCE
In that he, LCPL Benjamin Osaji at sector 2, Zabarmari, Maiduguri on or about 14 May 16, unlawfully detained and tortured one Yakubu Isa, a 13 years old boy of Zabarmari village to death without lawful justification.”
At the trial, the Respondent as prosecutor, adduced evidence through three witnesses and tendered three documents, Exhibits P1, P2 and P3. The Appellant, in turn, testified in his defence, called no other witness and tendered no exhibits. At the close of trial, Counsel for each of the parties rendered their final closing arguments in writing. Thereafter, the General Court Martial delivered its Judgment on 15-12-17 wherein it convicted the Appellant of the lesser offence of manslaughter, instead of the offence of murder charged, and sentenced him to twenty (20) years imprisonment. The conviction was confirmed by the Confirming Authority on 25-05-18 which however reduced the term of imprisonment to ten (10) years. Dissatisfied with the verdict the Appellant, having sought and obtained the leave of this Court on 16-01-19, subsequently filed this Appeal on 24th January, 2019 wherein he complained on three grounds.
At the hearing of the Appeal on 01-06-20, S.A. Onimisi Esq., holding the brief of Jack Iyioku Esq., adopted the Appellant’s Brief of argument filed on 12-04-19, as well as the Appellant’s Reply Brief filed on 15-07-19 and deemed duly filed on 01-06-20 in response to the Respondent’s Brief of argument, both Briefs settled by Jack Iyioku, Esq., in urging the Court to allow the Appeal. Sule Yusuf Esq., learned Counsel for the Respondent, in responding to the Appeal adopted the arguments in the Respondent’s Brief of argument filed on 10-06-19, deemed filed on 01-06-20 and settled by O.M. Atoyebi Esq., in urging the Court to dismiss the Appeal and affirm the Judgment of the lower Court.
Learned Counsel for the Appellant in his Brief of argument formulated the following two issues for determination:
a. “Whether the trial/investigation of the Appellant by the Commanding Officer is not a condition precedent before the Appellant’s trial at the lower Court. (Ground 1)
b. Whether in view of the evidence canvassed at the trial, the lower Court is right to have convicted the Appellant without considering the evidence of the witnesses. (Grounds 2 and 3)” Learned Counsel for the Respondent in the Respondent’s Brief of argument, also framed two issues for determination thus:
a) “Whether the trial/investigation of the Appellant by the Commanding Officer is not a condition precedent before the Appellant’s trial at the lower Court. (Ground 1)
b) Whether considering the totality of the evidence of the witnesses at the trial, the lower Court was not right to have convicted the Appellant for manslaughter. (Grounds 2 and 3)
Evidently, the two sets of issues are almost identical except for a slight variation in the second issue crafted by the Respondent. Since the Appeal is based on the Appellant’s Grounds of Appeal, I adopt the issues as distilled by the Appellant in the determination of the Appeal.
ARGUMENTS:
Issue one- Whether the trial/investigation of the Appellant by the Commanding Officer is not a condition precedent before the Appellant’s trial at the lower Court.
Under this issue, learned Counsel for the Appellant submits that Sections 123 and 124(2) of the Armed Forces Act, 2004 contains a condition precedent which ought to be fulfilled by the Respondent before the Appellant could be tried by the lower Court. These statutory requirements are reinforced in Rules 7(1) and 8 of the Rules of Procedure Army (1972). The condition precedent is that the allegation against the Appellant should be investigated by his Commanding Officer and he be remanded after the investigation before he is arraigned for trial before the Court-Martial.
Counsel contends that the Respondent did not observe these provisions which contains the condition precedent in to activating the charge against the Appellant at the GCM. By reason of this non-compliance, the GCM was not competent to entertain the charge against the Appellant. Counsel submits that this constitutes a breach of the Appellant’s fundamental right to fair hearing under Section 36(1) of the 1999 Constitution (as amended). For the purport of failure to fulfill a condition precedent to a trial and the issue of fair hearing, reliance is placed on the following authorities:Eze V Okechukwu (1998) 5 NWLR (Pt. 548) 56; Oseyomon V Ojo (1997) 7 SCNJ 377; and Duke V Govt., Cross River State (2013) 8 NWLR (Pt. 1356) 347, 353. The Court is therefore urged to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent disputes that the Commanding Officer’s investigation as enshrined in Section 123 of the Armed Forces Act, is a precondition to the exercise of the lower Court’s jurisdiction in light of the facts and circumstances of this case. He contends that the word “shall” as used in the provision is directory and/or permissive and so compliance thereto is not mandatory. Therefore, the lower Court was competent and properly constituted to have exercised its jurisdiction in the manner it did.
Counsel also submits that the trial did not result in a breach of the Appellant’s right to fair hearing as it is the facts of a case that determines the application of the principle. This is more so that the purport of the provision is to ensure that proper investigation was carried out before an accused is tried and nothing more. He submits that from the printed Record of the lower Court, PW3 gave evidence on the nature of investigations carried out before the trial.
In respect of Section 124 of the Armed Forces Act (AFA) (supra), Counsel submits that it is silent on who should carry out the investigations. Instead, the purport of the provision is that the case must have been investigated before trial and there was ample evidence of this. He further contends that the provision is applicable only in respect of summary trials by the Commanding Officer, and not otherwise. In the instant case, the Appellant was not tried summarily by the Commanding Officer but by the Court-Martial after due investigation had been carried out by PW3. He referred to Section 124(3) and 127 of the Act (supra) and submits that the subsequent trial by the Court-Martial is statutory, valid and constitutional.
With regard to Rules 7(1) and (8) of the Rules of Procedure Army (1972), Counsel submits that they are only applicable when the Commanding Officer is in charge and therefore conducts a summary trial. They are not applicable when trial is before a Court-Martial.
Counsel further submits that where there is no sanction or penalty in a statute for failure to adhere to its provisions, any non-compliance would be treated as a mere irregularity that does not affect the trial unless a miscarriage of justice is shown to have been occasioned.
Counsel submits that the alleged non-compliance, if any, was an irregularity and same having not been raised at the GCM when the charge was read to the Appellant and/or during the trial, cannot now be raised on appeal. He relies on Magaji V Nigerian Army (2008) 8 NWLR (Pt. 1089) 338, 384 to submit that a party who has acquiesced to an alleged irregularity cannot later complain. He urged the Court to resolve this issue in favour of the Respondent. In a brief reply, Counsel for the Appellant submits that non-compliance with a condition precedent is a jurisdictional issue which can be raised at anytime, even on appeal.
RESOLUTION:
The contention of the Appellant at this stage of the proceedings, i.e. on appeal, that the trial GCM lacked the competence to have entertained the charge and proceeded to try him when an investigation was not carried out before the charge was preferred, is unexpected. This is because from the printed Record of Appeal, the Appellant or his Counsel never raised any objection either before or after the charge was read to the Appellant as to the competence of the GCM and its jurisdiction in respect of the charge. The law is trite that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure or the like, shall be taken immediately after the charge has been read over to the accused, and not later – Section 167-168 of the Criminal Procedure Act. See Osareren V FRN (2018) LPELR-43839(SC) 4-10, F-D; Agbo V State (2006) 6 NWLR (Pt. 977) 545, 577-578; Okaroh V State (1990) 1 NWLR (Pt. 125) 128, 136-137. Nonetheless, I shall still look into the provisions referred to in the AFA (supra) in this regard. For ease of reference, Sections 123 and 124 of the Armed Forces Act, 2004 provide as follows:
“123. Before an allegation against a person subject to service law under this Act (in this section referred to as the “accused”) that he has committed an offence under a provision of the Act is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.
124(1) After investigation, a charge against an officer below the rank of lieutenant colonel or its equivalent or against a warrant or petty officer may, if an authority has power under the provisions of this Part and Part XIII of this Act to deal with it summarily, be so dealt with by that authority (in this Act referred to as “the appropriate superior authority) in accordance with those provisions.
(2) After investigation, a charge against a non-commissioned officer, soldier, rating or an aircraftman may be dealt with summarily by his commanding officer subject to and in accordance with the following provisions of this Part and Part XIII of this Act.
(3) A charge not dealt with summarily shall, after investigation, be remanded for trial by a Court-martial.
(4) Notwithstanding anything in the foregoing provisions of this section, where the commanding officer has investigated a charge against an officer or a warrant or petty officer, he may dismiss the charge if he is of the opinion that it ought not to be further proceeded with.
(5) References in this Act to dealing summarily with a charge are references to the taking by the appropriate superior authority or the commanding officer of the accused, as the case may require, of the following action, this is –
(a) Dismissing the charge; or
(b) Determining whether the accused is guilty; or
(c) Where the accused is guilty, recording a finding of guilty and awarding punishment; or
(d) Condoning the offence in accordance with the provisions of this Act.
(6) A commanding officer shall not deal summarily with a charge under any of the following sections of this Act, that is –
(a) Sections 45, 46, 47, 48, 51, 52, 53, 65, 66, 67, 69, 70, 71, 72, 73, 75, 76, 83, 88, 91 and 93;
(b) Sections 95 and 98 so far as they are applicable to an offence under any of the provisions mentioned in paragraph (a) of this subsection.”
There is no gainsaying that Section 123 above provides for the investigation of an offence against a person subject to service law; while Section 124(1) provides for the Commanding officer to deal with the offence summarily in appropriate cases after investigation, except in respect of offences set out in Section 124(6). Even though Section 106 under which the Appellant was charged for murder is not listed in subsection (6), it is covered by Subsection (3) therein. It goes without saying that due to the gravity of the offence of murder, a capital offence punishable by death, it cannot be tried summarily but in a full trial which inevitably would take place before a General Court Martial in the case of persons under service law.
In addition, in consonance with the requirement in Section 123 of the AFA (supra), for an investigation to be carried out before trial, the evidence on Record discloses that soon after the Appellant was arrested along with others for the death of the deceased, Yakubu Isah, he was detained in the Guardroom of the 7 Division of the Nigerian Army where, by his own admission, and from the evidence of PW1, PW2 and PW3, the allegation that they caused the death of the deceased, was investigated. It was in the course of the investigation that PW3, a Military Police Detective, interviewed all four soldiers involved in the incident and they volunteered statements which were recorded in writing. In particular, the Appellant wrote down his statement himself and answered an interrogatory again in writing, all in furtherance of the investigation carried out before his arraignment and subsequent trial. PW3, after conducting his investigations, handed over his report to the Commanding Officer who directed that the Appellant and his co-travelers be tried for the offence of murder before General Court Martial (GCM). Therefore, the Convening authority promptly convened a General Court Martial (GCM) before which they were arraigned.
In line with the provisions of the Act (supra), the GCM was convened by the Convening Order of the Commanding Officer, the Acting General Officer Commanding (GOC) 7 Division NA, Brigadier General I.M. Yusuf (page 116 of the Record). Since the name of the Appellant was not contained in Paragraph 4 of the Convening Order, it was subsequently amended to incorporate the Appellant’s name by a subsequent amendment (page 124 of the Record).
Based on the Convening Order and its Amendment (supra), the Appellant was charged for the offence of murder under Section 106 of the AFA (supra) before the GCM. The name of the Appellant, 09NA/63/4143 LCpl Osaji Benjamin was listed (at page 126 of the Record) as one of those to whom the amendment to the Convening Order was duly distributed. Thus, it is apparent from this that in line with Section 123 of the Act, the Acting General Commanding Officer (GOC) of 7 Division of the Nigerian Army, being the Commander officer of the Appellant, Brig. Gen. IM Yusuf, after due consideration of the report of investigation, elected not to try the Appellant summarily for the charge of murder, and pursuant to Section 123(3) of the Armed Forces Act, forwarded the case to the General Court Martial for trial. It is noteworthy that it is this same Commanding Officer who signed the Charge sheet upon which the Appellant was arraigned (page 6 of the Record).
By virtue of these pieces of oral and documentary evidence contained in the Record, it would be nit-picking and amount to nothing but an ingenious fault-finding to say that the Commanding Officer did not investigate the allegation against the Appellant before he was arraigned before the GCM for trial. The issue of whether the Commanding Officer initiated/ordered the investigation or he conducted the investigation himself is immaterial; so long as an investigation was carried out under the auspices/direction of the Commanding officer and in line with Section 123(3) of AFA (supra), he used his discretion not to try the charge of murder summarily, but convened a General Court Martial for the Appellant to be tried.
It is apparent from the wordings of Section 123 of the Act (supra) that the intention of the Lawmaker is that a person who is subject to service law should not just be taken off the street and rushed before a Court Martial until it is determined by a very senior officer, i.e. his Commanding Officer, that the allegation is of such a grave nature that it cannot be summarily tried by him, but warrants a full and proper trial by a GCM which is comprised of a prosecutor and legal representation for the accused soldier. This is evidently so as to protect the fundamental rights of an accused soldier and ensure fair hearing since the GCM is also subject to the provisions of the Constitution, as well as the other Laws of the land, such as the rules of evidence in the Evidence Act, 2011, etc. I therefore think that in view of the evidence before the trial GCM it is ludicrous to contend that the Commanding officer of the Appellant failed to investigate the allegation before he was arraigned before the trial GCM.
Furthermore, it is not in dispute that Brigadier-General IM Yusuf, the Commanding officer of the Appellant, was the Acting GOC of the 7 Division of the Nigerian Army, as elaborately established both in the Convening Order of the GCM and the charge preferred against the Appellant. By Section 128(1) of the AFA (supra), the following persons may act as appropriate superior authority to a person charged with an offence:
(a) “The Commanding Officer and
(b) Any officer of the rank of Brigadier or above or officer of corresponding rank or those directed to so act under whose command the person is for the time being.” (Emphasis supplied)
By this provision, which is both clear and unambiguous, Brigadier-General IM Yusuf held the prescribed rank and as the GOC of the 7 Division Nigerian Army, Maiduguri, he was the Commanding officer of the Appellant who was serving in the said 7 Division, Sector 2, Operation Lafiya Dole stationed at Zabarmari. Therefore, by virtue of Section 131 (1)(d) of AFA (supra), Brigadier-General IM Yusuf was qualified and competent to convene the GCM after having investigated the allegation against the Appellant.
In addition, this Court in Onyeukwu V State (2000) 12 NWLR (Pt. 681) 256, 266, has held that by virtue of Section 131(2) of the Act, a GCM may be convened by:
(a) “The President, or
(b) The Chief of Defence Staff; or
(c) The Service Chiefs; or
(d) A General Officer Commanding or corresponding command; or
(e) A Brigadier, Commander or corresponding command.” (Emphasis supplied)
Thus, the power of a GOC and an officer of the rank of Brigadier-General, such as Brig. Gen. Yusuf, to convene a GCM after due investigation of the charge/allegation against the Appellant, is settled. See NAF V Obiosa (2003) 1 SCNJ 343 per Ejiwunmi, JSC; & NAF V James (2002) 18 NWLR (Pt. 98) 295, 317-318 per Onu, JSC.
In addition, in fulfillment of Section 124(1) of the Act PW3, a Military Police Detective with the 7 Division of the Nigerian Army, Maimalari Cantonment Maiduguri, graphically described in his evidence how he was assigned to investigate the allegation/charge against the Appellant and he promptly proceeded to do so (pages 44-47 & 52) of the Record). PW3 further testified that in the course of his investigations, he interviewed the Appellant and the other soldiers accused along with him, in particular PW1 and PW2, as well as the father and uncle of the deceased boy, in order to garner evidence. The hand-written statement of the Appellant/accused person and those of PW1 and PW2 are in evidence as Exhibits P1, P2 and P3. These are undoubtedly steps taken by the PW3 in investigating the allegation. The oral evidence of PW1 and PW2 also buttressed the evidence of PW3 that an investigation was duly conducted wherein they were invited by the Military Police (PW3) and they wrote their respective statements giving the accounts of what transpired which led to the demise of the deceased (pages 20-23 & 36 of the printed Record). These go further to confirm that an investigation of the allegation was carried out by the PW3 under the authority of the Acting GOC of 7 Division NA being the Commanding officer of the Appellant, in line with Section 123 of the AFA (supra), before the Appellant was arraigned before the trial GCM for trial for the offence of murder.
In addition, the argument by learned Counsel for the Appellant that the matter was not investigated since the PW3 did not visit the scene of crime, does not without more equate to an absence of investigation. It could be that in his opinion, the investigation was inadequate or incomplete. Nonetheless, it does not detract from the fact that the allegation was duly investigated as required by law. Consequently, the presumption of law in Section 168 of the Evidence Act (supra) on the presumption of regularity of official acts is activated unless and until it is otherwise proved.
Incidentally, this same issue was canvassed before the Supreme Court by the Appellant therein in respect of proceedings before a General Court Martial and the alleged infraction against Sections 123 and 124 of the AFA (supra) concerning the conduct of investigations by the Commanding officer before trial. In Magaji V State (2008) LPELR-1814(SC) 50, 56, Ogbuagu, JSC interrogated the submissions of Counsel, who likewise contended that the Appellant should have first conducted an investigation before the trial before the GCM in compliance with Sections 123 and 124 of the AFA (supra), but did not. His lordship however held that based on the facts on Record before it, if there was no investigation how did the Appellant make the statement that was tendered and admitted before the trial Court? Similarly, in the instant Appeal, the statement of the Appellant, Exhibit P3, in addition to the statements of PW1 and PW2, Exhibits P1 and P2 constitute evidence that an investigation was carried out in respect of the allegation against the Appellant. This is more so that the second part of these statements were interrogatories in which sessions of questions and answers were held with the Appellant, as well as with the witnesses. These were undoubtedly a part of the investigations carried out under the auspices of the Commanding officer and Acting GOC, Brigadier-General IM Yusuf.
With respect, Sections 123 and 124 of the AFA do not contemplate that two trials in respect of an allegation/charge of murder would take place consecutively, first by the Commanding Officer and second by the GCM. Such an interpretation as suggested by learned Counsel would not only be absurd but would amount to double jeopardy because by the detailed step-by-step process set out in Rules 7(1) and 8 of the Rules of Procedure Army (1972), the Commanding officer is mandated to carry out such an investigation only where the accused soldier is going to be tried summarily. This is because the process amounts to a full blown trial of an accused soldier by his Commanding officer after an investigation of the charge against him, in which a plea is taken, prosecution witnesses testify and are cross-examined by the accused and the accused calls witnesses in his defence. It is evident that the substantive law in Sections 123 and 124 of the AFA (supra) accommodates this procedure only where the Commanding officer decides to proceed against the accused soldier summarily by way of a summary trial.
Where however, after due investigation of an allegation, an accused soldier is to be tried by a GCM, then he cannot be made to go through a summary trial procedure in the manner described in Rules 7 and 8 of the Rules of Procedure Army (supra) above. That would be a misnomer and would, as afore-stated, amount to double jeopardy which is in contravention of a citizen’s fundamental right under Section 36(9) and (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). With the greatest respect to learned Counsel for the Appellant, he has misconceived the application of these provisions of the law and Rules in this regard in the circumstances of this case.
Learned Counsel has also relied on the often-cited case of Madukolu V Nkemdilim (1962) All NLR 587 on jurisdiction. Once again, this case is inapplicable to the facts of this case because the General Court Martial which convicted the Appellant was properly constituted “as regards numbers and qualifications of the members”. No member of the General Court Martial was disqualified, the offence was within the jurisdiction of the General Court Martial, and the case came before the General Court Martial by due process of law and after investigation, a condition precedent to the exercise of jurisdiction of the General Court Martial. Thus, the Appellant has been unable to show how his right to fair hearing has been breached by an alleged non-investigation of the case, which was not established.
It must be emphasized that fair hearing is not a magic wand to be waved about by Counsel in any and every situation to serve as an anchor in a stormy sea. Section 36(1) of the Constitution (supra) provides that –
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The Appellant has however failed to show how his right to fair hearing under Section 36(1) (supra) has been breached. Hence, Counsel should heed the several admonitions by the Supreme Court that the doctrine of fair hearing should cease to be abused by both litigants and Counsel just because a party is struggling to make out a case. See Inakoju V Adeleke (2007) LPELR-1510(SC) 231, per Ogbuagu, JSC; & MM Services Ltd V Oteju (2005) 5 SCNJ 100, 117, 118-119; (2005) 14 NWLR (Pt. 945) 517, per Tobi, JSC and Edozie, JSC.
In particular, in the case of Orugbo V Una (2002) 16 NWLR (Pt. 792) 175, 211, Tobi, JSC in his inimitable way, exhorted Counsel on their frequency in brandishing the right of fair hearing in any and every situation, whether merited or not, in these words:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle, which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
The facts of this case certainly do not support the invocation of the principle of fair hearing in favour of the Appellant because Appellant did not substantiate the allegation that the allegation was not investigated by the Appellant’s Commanding Officer. He was as disclosed by the abundant facts on Record. Accordingly, this issue is resolved against the Appellant.
Issue two – Whether in view of the evidence canvassed at the trial, the lower Court is right to have convicted the Appellant without considering the evidence of the witnesses.
In arguing this issue, learned Counsel for the Appellant submits that from its findings, the lower Court was not certain about what was responsible for the death of the deceased. This is because the Appellant was consistent in stating in his evidence as DW1 that he only used a little cane from the Dogonyaro tree to flog the three boys. He also denied rubbing ground pepper on the body of the deceased. Counsel contends that since there was evidence that the beating and torture, especially the rubbing of ground pepper on the deceased’s body, was carried out in multiple stages, the Respondent ought to have further investigated which of the three officers actually caused the death of the deceased. He further contends that the lower Court failed to consider the evidence of the witnesses in resolving the question of whether the Appellant, by merely flogging the deceased with a cane at the initial stage of the beating, could have contributed and/or caused the death of the deceased. That since PW1 and PW2 also participated in flogging the deceased, it was necessary to have drawn a distinction between mere flogging by the three officers and the beating inflicted on the deceased by Sgt. Ototo from the Tango right to the house of the father of the deceased which, he contends, was done in anger. Counsel submits that the lower Court only engaged in speculation and failed to consider the evidence of the Respondent’s witnesses in order to arrive at the real cause of death. In addition, Counsel also submits that the soldiers only acted under the instruction of their Guard Commander, Sgt. Ototo to beat up the deceased. Finally, he urged the Court to allow the Appeal and make a consequential order reinstating the Appellant to the service of the Respondent.
In response to these submissions, learned Counsel for the Respondent submits that Counsel for the Appellant conceded in paragraph 5.08 of his Brief of argument that the Appellant participated in flogging and beating the deceased, which actions ultimately led to his death. He therefore submits that the flogging of the deceased with the Dogonyaro sticks jointly and severally by the Appellant and three other officers, cumulatively caused the death of the deceased. That the rubbing of pepper on the body of the deceased could not, on its own, have led to the death of the deceased without the aggravating effect of the initial injury caused by flogging and beating of the deceased by the Appellant and his co-travelers.
Counsel also submits that the Appellant admitted both in his confessional statement (Exhibit P3) as well as in his evidence-in-chief and cross-examination as DW1, that he flogged the deceased. This evidence is corroborated by those of the PW1, PW2 and PW3. Therefore, the Respondent was able to prove that the Appellant, by participating in the beating of the deceased along with the other officers, caused the death of the deceased. Thus, the lower Court was right to have convicted the Appellant for manslaughter.
Counsel submits that the three ingredients to be proved in a charge of manslaughter are: (i) that the deceased died; (ii) that the accused was responsible for the deceased’s death; and (iii) that the act of the accused which caused the deceased’s death was not done with the aim of killing the deceased but was accidental- Okwuaka V State (2018) LPELR-45155(CA) 11, B-F. For the proof offered in the instant case, he refers to the evidence of the PW1, PW2 and PW3, as well as Exhibits P1, P2 and P3. He submits that the lower Court was right in its evaluation of the evidence and in its finding that the flogging of the deceased was the cause of the death of the deceased. The contributory beating by the Appellant, whether minimal or otherwise, led to the death of the deceased either constructively or involuntarily, and this amounted to manslaughter – John V State (2014) LPELR-23382(CA).
Counsel also submits that where the victim of an unlawful attack died on the spot consequent upon such an attack, that fact alone would be regarded as adequate proof of cause of death as cause of death can be proved either by direct evidence or circumstantial evidence – Ebong V State (2011) LPELR-3789(CA). He therefore submits that the cause of death in the circumstances of this case is the joint beating/flogging of the deceased and not just the rubbing of pepper on the deceased’s body – Galadima V State (2017) LPELR-43469(SC) 44-45, E-B, per Eko, JSC.
Counsel further submits that since there was evidence that the deceased was alive, healthy and going about his normal life before the incident, the chain of events leading to his death was not broken such that a doubt could have been raised in favour of the Appellant – Maiwada V State (2015) LPELR-40413(CA) 22-23, B-C.
Counsel submits that since the lower Court properly evaluated the evidence, this Court should not interfere with its findings. He urged the Court to resolve this issue in favour of the Respondent and consequently, to dismiss the Appeal.
RESOLUTION:
This issue was re-phrased by learned counsel for the Respondent in his Brief of argument thus:
Whether considering the totality of the evidence of the witnesses at the trial, the lower Court was not right to have convicted the Appellant for manslaughter.
In the circumstances of this Appeal, the issue crafted by the Respondent appears more apt because from an inspection of the Judgment of the GCM (at pages 101-106 of the Record), it gave consideration to the evidence of the witnesses in making its findings in line with the law and procedure governing the General Court Martial. The relevant provision in the AFA Act (supra) is Section 141(1) and it reads:
“Without prejudice to the provisions of Section 139 of this Act, the finding of a Court-martial on each charge shall be announced in open Court and, if the finding is guilty, shall be, and be announced as being subject to confirmation.”
See also Rule 67 of the Rules of Procedure (Army) 1972.
In interpreting this provision and giving flesh to it, in particular on the issue of Judgment writing by a GCM, the Supreme Court in the case of Major Bello Magaji V Nigerian Army (2008) LPELR-1814(SC) 67, A-G; (2008) 8 NWLR (Pt. 1089) 338, 394, the Supreme Court held that the GCM cannot be equated to regular Courts where strict procedures are required, as it is no more than a tribunal and, at best, it can be equated as a jury trial. In his words, Ogbuagu, JSC intoned inter alia as follows –
“It must be borne in mind that the GCM 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 a jury trial. Even in the regular Courts, it has been stated and restated that there is no specific style of writing a judgment… I do not think that in the absence of an elaborate and detailed written judgment by the Court Martial, as contended by the Appellant in this appeal that alone should be the ground to set aside the judgment of the Court, once the essential ingredient of the offence of sodomy was established beyond reasonable doubt.”
It is in the light of the above guidance that I have examined the Judgment of the GCM which is contained at pages 101-106 of the printed Record.
It is apparent that the GCM made specific findings of fact in respect of the death of the 13 year old boy and the acts of the Appellant which, cumulatively with the acts of the other officers, led to the death of the deceased. The specific findings are at pages 104-106 of the Record and some portions are reproduced hereunder as follows:
“The accused soldier further confirmed to the Court in his oral testimony in defence that he used Dogonyaro stick to beat Master Yakubu Isah and when he did not say where the phone was, the guard commander, Sgt. Ototo, instructed LCpl Chima Daniel to grind pepper. The accused soldier also stated categorically that Pte Chima Daniel handed over the pepper to him and that the guard commander applied the pepper on the deceased. It was clear to the Court that the pepper was used as an instrument of torture on the boy, while simultaneously he was being beaten, which could reasonably be deduced to have cumulatively and directly led to the death of the minor, Master Yakubu Isah. It was also in evidence before this Court that the deceased minor was while alive, healthy and going about his normal life before the issue of missing phone arose, which now led to his arrest, detention at the guard post and torture that subsequently led to his death. In the same vein, the evidence before this Court revealed that the minor died right at the duty post of the accused and the entire incident took place between 1300 hours and 1800 hours on that fateful day… This honourable Court viewed the action of the accused as being culpable for the alleged offence.”
These are clear findings made by the GCM and they are totally in consonance with the evidence adduced before the GCM, both by the prosecution and by the Appellant himself in his statement Exhibit P3, which was tendered without objection, and in his defence.
The next contention of the Appellant is that the prosecution failed to prove that it was the act of the Appellant that caused or led to the death of the deceased. The Appellant herein was charged under Section 106 of the Armed Forces Act (2004) which provides:
“106. A person subject to service law under this Act who, without justification or excuse, unlawfully kills another person whether or not subject to service law under this Act when –
a) He intends to cause the death of the person killed or that of any other person; or
b) He intends to do the other person killed or to any other some person grievous harm; or
c) Death is caused by means of an act done in the prosecution of an unlawful purpose, where the act is of a nature that is likely to endanger human life, is guilty of murder and liable, on conviction by a Court martial, to suffer death.”
After a full trial, the lower Court found that the elements of the offence of murder under Section 106 of the AFA (supra) were not proved, and so convicted the Appellant of the lesser offence of manslaughter under Section 105 of AFA (supra). The provision reads:
“A person subject to service law under this Act who –
(a) Unlawfully kills another person in such circumstances as not to constitute murder; or
(b) With intent to kill or do some grievous harm to another person, unlawfully kills that person on the heat of passion caused by sudden provocation, and before there is time for his passion to cool, is guilty of manslaughter and liable, on conviction by a Court martial, to imprisonment for life.”
The essential ingredients which must be proved to establish an offence of manslaughter under Section 105 (a) (supra) are:
a. The fact of the death of the deceased;
b. That such death was caused by the unlawful act of the accused; and
c. That the unlawful act of the accused was inadvertent or negligent leading to the death of the deceased.
In establishing each of these elements, the prosecution may employ one or more of the following modes of proof, i.e. confessional statement, circumstantial evidence and/or direct evidence being evidence from eyewitnesses – Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Igabele V State (2006) 6 NWLR (Pt. 975) 103. An accused person is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and which inadvertently caused death – Amayo V State (2001) 18 NWLR (Pt. 745) 251, 285(SC); Adamu V Nigerian Navy (2016) LPELR-41484(CA) 57. The question that arises therefore is, whether or not the ingredients of the offence of manslaughter under Section 105 of the AFA (supra) were established from the evidence led by the prosecution; and whether the guilt of the accused was proved beyond reasonable doubt as required under Sections 135 and 137(2) of the Evidence Act, 2011?
In making a determination one way or another, this Court is mindful of the fact that with regard to findings of facts, the evaluation of evidence and ascription of probative value to the evidence is the forte of the trial Court, i.e. the GCM in the instant case. Once the trial Court has discharged its duty on the strength of the evidence placed before it, unless it is established that its findings and conclusions were perverse and not supported by the evidence adduced before it, an appellate Court will not interfere where the conclusion reached is correct, even if the reasoning turns out to be wrong – Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187; 198.
Consequently, an appellate Court is loath to interfere with the Judgment of a trial Court when it was not privileged to see the witnesses testify and observe their demeanour. It is for this reason that appellate Courts do not, as a matter of course, readily substitute their own views for that of trial Courts except where it is established that such decisions were perverse. Thus, an appellate Court will only intervene to re-evaluate the evidence where it is shown that the findings made and the conclusions reached by the trial Court did not flow from the proved facts or runs contrary to the proved facts – Sa’eed V Yakowa (2013) All FWLR (Pt. 692) 1650, 1681. The first duty of the Court therefore is to consider whether or not the findings of the GCM on the facts constituting the ingredients of the offence of manslaughter did not flow from the proven facts or whether they run contrary to proved facts, and so were perverse. Where this is not the case, the Court would not be in a position to re-evaluate the correct findings and conclusions of the GCM. In carrying out this duty, I turn my attention to the evidence led by the parties vis-a-vis the findings of the GCM, i.e. whether the findings are borne out by the evidence adduced before it.
The Appellant’s Counsel has contended that the Respondent failed to prove the ingredients of the offence of manslaughter to warrant the conviction by the GCM. In particular, that the death of the deceased was not established and that the prosecution failed to prove that it was the act of the Appellant that led to the death of the deceased. On the part of Counsel for the Respondent, it is contended that there was ample evidence to prove all the ingredients of the offence of manslaughter through its witnesses, PW1, PW2 and PW3, the exhibits admitted in evidence, to wit: Exhibits P1, P2 and P3, as well as the testimony of the Appellant himself as DW1. I will now proceed to examine the evidence offered by the Respondent in proof of the elements of the offence and with a view to establishing whether the findings and conclusion of the GCM are in tandem with the evidence and so ought to be left undisturbed; or whether other they are perverse and so are liable to be set aside. The PW1 and PW2, both colleagues of the Appellant at their Tango (duty post) in Zabarmari, who were both eyewitnesses and participis criminis, both testified that they, in conjunction with the Appellant and led by their Guard Commander, Sgt. Ototo, flogged and beat up the deceased on the fateful day. When the flogging and beating did not achieve the desired result, which was for the deceased to divulge where he had kept Sgt. Ototo’s stolen phone, they took it to the next level. PW1, on the instruction of Sgt. Ototo, grinded pepper and handed it over to the Appellant who, without hesitation, admitted that he held the container of pepper while Sgt Ototo and one other civilian rubbed the pepper on the body of the deceased. Certainly, in the normal course of events, it would not be surprising that the young boy sustained cuts/injuries/wounds on his body having been flogged consistently by four adult soldiers with sticks otherwise referred to as “canes” cut from the Dogonyaro tree, for a period of five hours from 1300 hours (1:00pm) to 1800 hours (6:00pm)! Thereafter, the Appellant and his three colleagues further acted in concert to inflict additional pain on the deceased by rubbing pepper on the body of the deceased, further aggravating his pain and hurt. This act, which has been variously referred to as torture in the Record, no doubt constitutes cruel and unusual punishment inflicted on this child who was barely a teenager at 13. It should therefore have come as no surprise to the Appellant that the deceased sustained grievous hurt from their joint actions and that death subsequently resulted from it almost instantaneously on the same day shortly after the beating and torture. It is ingenious but fruitless for the Appellant to attempt to excise his own share of flogging of the deceased from the joint flogging and beating by his colleagues, and also to deny further responsibility by saying that he only held the container of pepper while Sgt. Ototo rubbed the pepper on the deceased’s body. From the circumstantial evidence offered, which the Appellant admitted to in his evidence in Court, it was an accumulation of the beating/flogging of the 13 year old boy over such a prolonged period of time, approximately five hours, and the rubbing of pepper on his battered, bruised and abused body that ultimately led to the death of the deceased on the very same day and while he was still in their custody at their duty post in their Tango. There was therefore a nexus between the acts of the Appellant and the three other officers, and the death of the deceased. I agree with the Respondent that the chain of events was not broken.
In addition the Appellant, by his own admission in Exhibit P3, written in his own handwriting and which was admitted without objection, stated exactly and explicitly the role he played in the events leading up to the death of the deceased. For instance, he wrote in Exhibit P3 (pages 176-177 of the Record):
“Cpl Aliyu started flogging (sic) the boy, giving him some (sic) punishment (sic) the guide commander (sic) also flogged (sic) the boy and I Osaji B also flog the boy. Later PTE Chima D. came out and start flogging the boy too… Sgt. Ototo told Chima to grind pepper and Oga Ototo put the pepper on his body with one civilian man called baba Sani put pepper on the body too. I was holding the pepper on my hand…
After that the boy died. We flogged the boy just to bring out the phone.” He further testifies as DW1 in his evidence-in-chief as follows:
“I used stick, dogonyaro stick just little stick because they are children and I told him to bring his hand and I flogged him on his hand for him to tell the truth where is the phone.”
Under cross-examination, he again admitted his role in the tragic incident thus:
“We flogged them in the palm, we were flogging them we were flogging three of them where is the phone that is all.”
It is apparent from all the above that the Appellant, while admitting to his role in the death of the deceased, only tried to minimize the effect of his actions and his role in the debacle in order to exonerate himself, after the fact and after things had gone awry. His arguments however amount to nothing but to a man obviously clutching at straws.
The law is settled that where two or more accused persons caused the death of a human being, they are held jointly and severally liable because the implication is that they shared a common intention. See Galadima V The State (2017) LPELR-43469(SC 44-45, E-B, where Eko, JSC held inter alia thus:
“In the law of joint commission of crime and the liability or criminal responsibility of each person who participated in the joint act is thus, as restated by this Court in Godwin Alao V The State (2015) LPELR-24686(SC) – Where more than one person are accused of the joint commission of a crime, it is enough that they all participated in the crime. What each of the participants did in furtherance of the commission of the crime is immaterial. The mere fact that there exists the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence.”
See also Nyam V The State (1991) 4 NWLR (Pt. 185) 287, 298-404.
In addition, the Appellant seeks to further water down the part he played, and therefore his culpability in the death of the deceased child, by contending that he was acting under the orders of Sgt. Ototo, his Guard Commander. However, as has been rightly submitted by learned Counsel for the Respondent, he is only expected to obey lawful orders.
Indeed, it is both horrific and horrendous as well as inhumane for four adult men, soldiers trained for war, trained to kill and actually deployed to the theatre of war and serving in “Operation Lafiya Dole” assigned to secure the territorial integrity of Nigeria; to jointly descend upon a defenceless young child of 13 years old, and beat and flog him to stupor for five long hours, and as if that was not enough, torture him further by applying pepper to his wounds, and still act surprised when he succumbed to these wicked acts and died. Their acts were atrocious and rendered each of these persons in the group guilty of the offence. As I said earlier, the fact that death resulted from their coordinated actions would not come as a surprise to a reasonable man and should not have come as a surprise to the Appellant and his co-travelers. It is indeed the joint acts of the Appellant and the three other soldiers that led to undue the death of the deceased, Yakubu Isah. Therefore for all these reasons, I find that the first, second and third ingredients of the offence of manslaughter were properly established by the evidence on Record, and so decline to interfere with the well-founded findings of the GCM thereon. Issue two fails and is again resolved against the Appellant. Consequently, having resolved both issues for determination against the Appellant, this Appeal is devoid of merit. It fails and is dismissed.
Accordingly, I affirm and uphold the Judgment, conviction and sentence of the General Court Martial sitting at 7 Division of the Nigerian Army Maiduguri and delivered by its President, Brigadier-General G.O. Adesina on 15th December, 2017 and confirmed by the confirming authority, the Chief of Army Staff (COAS), on 25th May, 2018.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lucid lead Judgment delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA.
I agree entirely with the reasoning and conclusion reached therein and I have nothing else to add.
I therefore abide by the orders made therein.
MUHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading beforehand the judgment just delivered by my learned brother J. H. Sankey, JCA PJ. Having had my learned brother has properly addressed all the issue in contention. I also agree in dismissing the appeal and I have nothing more to add. I agree with the conclusion and adopt them as mine.
I abide by all consequential orders.
Appearances:
A. Onimisi, Esq. Appears for the Appellant holding the brief of Jack Iyioku, Esq. For Appellant(s)
Sule Yusuf, Esq. For Respondent(s)
