MAJOR T. AKINLADE v. THE STATE
(2010)LCN/3860(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/I/104/2006
RATIO
CRIMINAL LAW: MEANING OF ACCOMPLICE
The term “accomplice” has been defined in OKONKWO v. STATE (1998) 8 NWLR (PART 56D page 210 at 257 as –
“One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of crime; partaker of guilt; one who aids and assists or is an accessory. An accomplice is one who is guilty of complicity in crime charged, either by being present and aiding or abetting it; or having advised and encouraged it, though absent from place when it is committed.” PER STANLEY SHENKO ALAGOA, J.C.A.
CRIMINAL LAW: WHAT IS THE POSITION OF OUR LAW REGARDING EVIDENCE OF AN ACCOMPLICE
Section 178(1) of the Evidence Act provides that –
“An accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it, proceeds upon the uncorroborated testimony of an accomplice.”
Courts are only enjoined to be wary and to warn themselves of the dangers of conviction on the uncorroborated evidence of an accomplice. The point should be made that if the only evidence available is the evidence of an accomplice provided the Court has satisfied itself that it is credible, such evidence can properly be relied upon by the Court. PER STANLEY SHENKO ALAGOA, J.C.A.
APPEAL: INSTANCE WHERE AN APPELLATE COURT WILL SET ASIDE THE JUDGMENT OF THE LOWER COURT
It is trite that an appellate court will only set aside the judgment of the lower court where there are material contradictions. See ARCHBONG v. THE STATE (2006) 5 SCNJ 2022 at 7035. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MAJOR T. AKINLADE Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the General Court Martial of the 2nd Mechanised Division of the Nigerian Army delivered on the 18th March 1996 and confirmed by the Appropriate Superior Authority on the 5th April 1996. The Appellant, a Major with the Nigerian Army Corps of Supply and Transport School, Benin was tried along with three others. The charges against him were as follows –
COUNT 1 – Disobedience to standing order contrary to section 57(1) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 disobeyed MT Standard Orders by detailing a military vehicle on unauthorized journey.
COUNT 2 – Committing a civil offence contrary to section 114 of the Armed Forces Decree 1993, that is to say Official Corruption contrary to section 98(1)(b) of the Criminal Code, in that he at Benin on or about the 21st November 1995 did corruptly enrich himself by agreeing to receive the sum of N28,000.00 from one Mr. Lawrence Oloko in relation to matters connected with the affairs of the Nigerian Army being a government department in which he serves as a public officer that is to say the use of Army Steyr Truck No: NA 911909.
COUNT 3 – Permitting improper carriage of goods in a military vehicle contrary to section 74(a) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 did permit the use of a military vehicle No. NA 911909 (Steyr Truck) for the carriage of 140 bags of weeds suspected to be Indian hemp intended for disposal by way of trade without lawful authority.
COUNT 4 – Agreeing to improper carriage of persons in a military vehicle contrary to section 74(c) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 did agree to carry one Mr. Lawrence Oloko and Sunday Ivie persons not being his immediate dependants or members of the Armed Forces in a Military vehicle No. NA 911909. He was convicted after trial on each of the four counts to the following terms of imprisonment –
COUNT 1 – 2 yrs imprisonment
COUNT 2 – 5 yrs imprisonment
COUNT 3 – 2 yrs imprisonment
COUNT 4 – 2 yrs imprisonment.
Although Appellant has finished serving his jail term he nevertheless appealed against his conviction and sentence by his Notice of Appeal dated the 16th October 2000 and filed on the 17th October 2000, grounds to which are reproduced from pages 114-116 of the Record of Appeal as follows –
1. The Court-martial erred in law in convicting the Appellant when the counts as charged disclose no offence(s) under the relevant laws.
2. The Court-martial erred in law in trying and convicting the Appellant when it had no jurisdiction to do so by virtue of S.33(12) of the 1979 Constitution.
3. The Court-martial erred in law in convicting the Appellant on the uncorroborated evidence of the prosecution witnesses.
4. The judge-advocate misdirected the Court-martial in law as regards the uncorroborated evidence adduced against the Appellant in his summing up.
5. The Court-martial erred in law in convicting the Appellant when the prosecution failed to prove its case against the Appellant beyond reasonable doubt as required under S. 138(1) Evidence Act.
6. The Court-martial erred in law in failing to take a plead of the Appellant upon the amendment of the charge.
7. The trial of the Appellant is a negation of the principles of natural justice in that the judge-advocate sat as a judge in his own case.
8. The judgment of the Court is perverse, unreasonable and unwarranted and cannot be supported having regard to the evidence before the court-martial.
From the eight grounds contained in the Notice of Appeal, the Appellant has formulated the following issues for determination by this Court viz –
(i) Whether the General Court Martial had the jurisdiction to entertain and convict the accused/Appellant for an “offence” which was not criminalized under the order which was allegedly breached.
This issue is said to be formulated from grounds 1 & 2 of the Notice & Grounds of Appeal.
(ii) Whether the General Court Martial was right to have convicted the Accused person/Appellant on the uncorroborated evidence of 1st and 2nd prosecution witnesses who were Accomplices – Refers to grounds 3 and 4 of the Notice of Appeal.
(iii) Whether, the failure of the General Court Martial to take the plea of the Accused person/Appellant to the amended charge during the trial proceedings was fatal to the subsequent proceedings and judgment based thereon – Ground 6.
(iv) Whether the principle of Nemo Judex in Causa Sua was not breached during the trial of the Appellant by the Judge Advocate who offered pre and after trial advice and also sat as a Judge in sentencing the Appellant – ground 7.
(v) Whether the prosecution proved its case beyond reasonable doubt by placing before the court credible evidence – grounds 5 & 8.
These issues are all contained in paragraph 4.1(i)-(v) at page 3 of the Appellant’s brief of Argument dated the 24th July 2007 and filed on the same day but deemed properly filed on the 6th February 2008.
The Respondent for its part has not formulated any issues of its own but appears to have adopted the issues as formulated by the Appellant as Arguments in respect of each of the issues. Exception to this is with respect to issue (c) on the Appellant’s brief of Argument which is whether the failure of the General Court Martial to take the plea of the Accused/Appellant to the amended charge during the trial proceedings was fatal to the subsequent proceedings and judgment based thereon. No argument appears to have been proffered by the Appellant on this issue in his brief of Argument and Respondent in paragraph 5 at page 3 of the Respondents’ Brief of Argument had this to say,
“It is trite law that ignoring to discuss the issue of failure to take Appellant’s plea on the amended charge means abandoning that issue”
I completely agree. The said Respondents Brief of Argument is dated the 19th November 2008 and filed on the 2nd December 2008 but deemed properly filed on the 7th May 2009. This appeal came up for hearing on the 17th March 2010 with Counsel on both sides adopting and relying on their respective Briefs of Argument already referred to. Appellant’s Counsel Kazeem A. Gbadamosi referred this Court to the additional authority of REX v. OKEREKE IREGBU 7 WACA 32 relevant to issue 2 at paragraph 6.2 of the Appellant’s Brief of Argument before urging this Court to allow the Appeal. Mallam J. A. Adamu, Chief Legal Officer, Federal Ministry of Justice urged this Court to dismiss the appeal.
The facts of the case are encapsulated in the Counts. I shall now proceed to deal with the issues as formulated by the Appellant and argued thereupon by the Appellant and the Respondent.
By way of a reminder Issue 1 is whether the General Court Martial had the jurisdiction to entertain and convict the Accused person/Appellant for an “offence” which was not criminalized under the order which was allegedly breached. To this issue Appellant referred to MAPUKOLU v. NKEMDILIM ALLIC Vol. 2 at page 24 where it was held that a Court will only be competent and have jurisdiction –
(i) When it is properly constituted in terms of numbers.
(ii) When it has jurisdiction over the subject matter and
(iii) When proceedings are initiated by due process.
While conceding that a Court Martial can in appropriate cases try its personnel and officers for offences that constitute criminal offence under the Armed Forces Decree and the Criminal and penal codes as might by applicable in a given situation,, Appellant submitted that a Court Martial cannot preside over civil matters as provided for under PART XII of the Armed Forces Decree 105 as amended. It was submitted that the Counts as contained in the charge do not disclose any offence against the Appellant. It is the submission of the Appellant that “Exhibit 2” at pages 136-138 which formed the basis of Count 1 as the Standing Order does not disclose any offence against the Appellant. Counsel for the Appellant posited that there is nowhere in the Standing Order where disobedience to orders contained therein was defined as an offence. Paragraph 4 of the Standing Order – “Exhibit 2”, it is stated by the Appellant, shows that a breach of the order will only amount to misconduct and not a criminal offence. Counsel referred to section 36 of the Constitution and submitted that the purport of that Constitutional provision is that an accused person cannot be charged or convicted under a non-existing law. Reliance was placed on AOKO v. FAGBEMI (1961) 1 ANLR 400; EGBUNA OKEKE & ANR V. I.6.P. (1965) 2 ANLR 81; AMBROSE EZIHIE V. I.G.P. (1965) 2 ANLR 171.
Appellant went further to submit that assuming without conceding that the breach of the orders amounted to an offence, the General Court Martial will still have no jurisdiction to try the offence as no punishment was prescribed in the standing order for the breach of the order and where no punishment is prescribed for an offence, then an accused cannot be convicted based thereon and the conviction must be set aside. Reliance was placed on A.G. OF THE FEDERATION V. DR. CLEMENT ISQNG (1986) 1 QLRN 86.
Appellant was charged in Count 1 under section 57(1) of the Armed Forces Decree 1993. This same provision is covered by section 57(1) & p) part XII of the Armed Forces Act Cap A20 Vol. 1 Laws of the Federation of Nigeria 2004. It deals with or comes under the heading “Disobedience to Standing Orders”. It is treated under a broader heading “OFFENCES” which covers inter alia Misconduct in Action, Mutiny, Insubordination, Absence from duty, Malingering and Drunkenness, etc. Section 57(1) & (2) (COUNT 1) provide as follows –
57(1) A person subject to service law under this Act who contravenes or fails, to comply with a provision of an order to which this section applies, being a provision known to him, or which he might reasonably be expected to know, is guilty of an offence under this section and liable on conviction by a Court Martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
(2) This section applies to standing orders or other routine orders of a continuing nature made for any formation, unit or body of troops or for any area, garrison or place or for any ship, train or aircraft.”
It is thus clear that Exhibit 2 which is the standing order is sufficiently defined and punishment prescribed for it. It is not a civil wrong under the Armed Forces Decree 1993 reproduced in the Armed Forces Act Cap 20 Laws of the Federation of Nigeria 2004 but an offence that attracts a prison term. This may sound strange to the average civilian not conversant with military discipline but should not sound strange to a military officer. He is reasonably expected to know the provision of Exhibit 2. He was subject to service law at the time of the commission of the offence alleged. This issue has to be and is accordingly resolved in favour of the Respondent against the Appellant.
Issue 2 is as to whether the General Court Martial was right to have convicted the Accused person/Appellant based on the uncorroborated evidence of the 1st & 2nd prosecution witnesses. Appellant has conceded in his Brief of Argument that a conviction based on uncorroborated evidence is not illegal but submitted that it is safer for the Court to insist on some corroboration. Reliance was placed on DAN LA MI OZAKI & ANOR v. THE STATE (1990) 1 NWLR (PART
124) page 92 at 113: CHRISTOPHER OKOSI v. THE STATE T1989) 1 NWLR PART 100 page 642 at 657.
Appellant submitted that where the Court finds that the only evidence before it is that of an accomplice the Court must warn the jury or itself of the danger of convicting on the uncorroborated evidence of that accomplice which the Court failed to do in this case. Appellant submitted that the Court Martial did not take into account the contradictions in the evidence of the prosecution witnesses because while PW1 asserted that he hired the truck from the Appellant, the other prosecution witnesses i.e. PW3, PW4 and PW5 testified to the effect that the 3rd and 4th accused persons informed them at the time of arrest that the truck was on road test and not hired. Appellant went on to submit that if the contradictions had been carefully reviewed, the Court would have disregarded the evidence of PW1 and discharged the Accused/Appellant. The evidence of PW2 was regarded by the Appellant as hearsay. The term “accomplice” has been defined in OKONKWO v. STATE (1998) 8 NWLR (PART 56D page 210 at 257 as –
“One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of crime; partaker of guilt; one who aids and assists or is an accessory. An accomplice is one who is guilty of complicity in crime charged, either by being present and aiding or abetting it; or having advised and encouraged it, though absent from place when it is committed.”
Going by this description PW1 and PW2 are not accomplices to all the charges levelled against the Appellant. Even granted they were, what is the position of our law regarding evidence of an accomplice? Section 178(1) of the Evidence Act provides that –
“An accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it, proceeds upon the uncorroborated testimony of an accomplice.”
Courts are only enjoined to be wary and to warn themselves of the dangers of conviction on the uncorroborated evidence of an accomplice. The point should be made that if the only evidence available is the evidence of an accomplice provided the Court has satisfied itself that it is credible, such evidence can properly be relied upon by the Court. PW1’s evidence is that he hired the truck from the Appellant. If the General Court Martial considered that piece of evidence credible it could rely on it. If it considered PW1 an accomplice it would only have to advise itself that it could be unsafe to rely on his evidence to convict and having so advised itself which need not be in writing as the Appellant’s Counsel is contending in the Appellant’s Brief any conviction so made would not be set aside by an appellate court simply because the evidence was that of an accomplice.
Issue 3 is whether the principle of Nemo Judex in Causa sua was not breached when the Judge Advocate in the trial of the Appellant by the General Court Martial took part in pronouncing judgment on the Appellant.
Appellant submitted that the convening order setting up the General Court Martial to try the Appellant specifically made provision for a panel of five members comprising the Chairman and four members which composition excluded the Judge Advocate who is in essence a legal adviser and not a Judge.
Nevertheless the Judge Advocate did not limit himself to this limited function of offering legal advice but offered pre trial, in trial, and post trial advice. The Judge Advocate it was submitted also took part with the President in signing the Judgment. The only logical conclusion that could be drawn was that the Judge Advocate was part of the panel that wrote and pronounced the Judgment. It was submitted that this dual role of the Judge Advocate in the case amounts to a breach of fair hearing since he was now a prosecutor and Judge in his own case. Appellant therefore urged this Court to hold that the entire proceedings amount to a nullity. Reliance was place on the following authorities viz – ADIGUN V. ATT. GEN. OF OYO STATE & ORS (1987) 1 NWLR PART 53 page 678; AGBOGU V. ADICHIE 2000) FWLR PART 127 at 1202; MOHAMMED V. OLAWUMI (1990) 2 NWLR PART 133 at 458-485.
Respondent has submitted in its Brief of Argument that the duty of a Judge Advocate is to guide the court on points of law while members are on their own in picking the facts from evidence laid before them. Section 139(7) of the Armed Forces Decree 1993 which has been replicated in Section 139 of the Armed Forces Act Cap A20 Vol. 1, Laws of the Federation of Nigeria 2004 provides that,
“A Judge Advocate shall be present at all sittings of a Court Martial except during ‘deliberations on finding and sentence.”
This provision is in no way ambiguous. A Judge Advocate is expected to constantly be present with the President and members of the Court Martial. To the discerning his position is not difficult to understand. He advises the Court Martial on the fine points or aspects of the law that may crop up from time to time. That may give the impression that he is part and parcel of the panel. It is necessary to scrutinize the records to find out whether he over-stepped this role. The words of the Judge Advocate after his sum up of the case is at page 109 of the Record and is worthy of reproduction here. It runs thus –
“In conclusion Mr. President Sir, members of the General Court Martial having stated the evidence adduced by both the prosecution and the defence and the position of the law regarding the case before you while you retire into findings, I will only pray that God gives you the wisdom with which to deliberate and arrive at a just decision as this is my last chance to advise you on this particular case. This is why I also touch on punishment sections so that you will find it easy to refer to them if need be. Thank you sir.”
(Underlining mine for emphasis).
I have taken pains to reproduce this last bit and to further emphasise certain portions of the last bit of the address of the Judge Advocate to show that he could not have and certainly did not take part in the judgment process. The underlined expression, “while you retire into findings” could not have been made by someone who followed the panel to take a decision on the case. The underlined expression “as this is my last chance to advise you on this particular case” shows that the Judge Advocate appreciated his role as being that of an adviser and not a Judge. Going through the records I do not see anything to suggest otherwise. It is also instructive to refer to the provision of section 137(1) of the Armed Forces Act Cap 20 Vol. 1 Laws of the Federation of Nigeria 2004 which states thus,
“An accused about to be tried by a Court Martial shall be entitled to object on any reasonable grounds to any member of the Court Martial or the waiting member whether appointed originally or in lieu of another officer.”
There is nothing to indicate that the Appellant objected to the presence of the Judge Advocate if he had any fears. The Judge Advocate was therefore not in breach of the principle of Nemo Judex in Caysa Sua while performing his statutory functions.
I therefore resolve this issue in favour of the Respondent against the Appellant.
Issues 4 and 5 are as to whether the prosecution proved its case beyond reasonable doubt. Reference is made here to contradictions on the part of the prosecution witnesses. The question here is whether the contradictions were material. It is trite that an appellate court will only set aside the judgment of the lower court where there are material contradictions. See ARCHBONG v. THE STATE (2006) 5 SCNJ 2022 at 7035. It is the Appellant’s argument that while PW1 stated that he hired the truck from the Appellant, PW3, PW4 and PW5 gave evidence that they were told by 3rd & 4th accused persons that the truck was on road test. This contradiction cannot be said to be material enough to set aside the conviction. On the improper tendering of Exhibit 2 the standing order which the Appellant later on came to question on appeal, argument in his evidence in paragraph 29 at page 87 of the Record (Not page 88) is as follows,
‘The defence concedes that there a standing order which was produced for purposed of this Court and that the accused is subject to service law. There was no evidence before the Honourable Court that the accused disobeyed a particular provision of the standing orders. The Charge is badly drafted because it gives the prosecution too wide a scope of chance around in without specificity’
(Underlining mine for emphasis).
It is thus clear that Exhibit 2 was admitted by consent and a point cannot now be made on appeal on its admissibility. In paragraph 8.10 at page 12 of the Appellant’s Brief of Argument, the following defence was put forward for the Appellant.
“If indeed the Appellant was involved in the commission of the offence would he have instructed the 3rd accused person to report himself to his senior, that is the C.S.M. ….”
In paragraph 8.12 at page 12 of the Appellant’s Brief the following conclusion was arrived at in Appellant’s favour,
“The Appellant was not and would not be privy to the carriage of the goods and men for which he was charged… ”
This exoneration the Appellant from knowledge that the army truck was being used to carry men and drugs is not borne out by the records. At page 86 paragraph 26 of the Records, the contention was that the 3rd accused was detailed to go and collect some gas cylinders. Appellant came to know that the vehicle had been used for the illegal purpose of carrying people and drugs by the 3rd accused but declined to take disciplinary action against him because when the 3rd accused had committed an offence earlier and the Appellant took disciplinary action against him it generated bad blood between them. That he instructed 3rd accused person to report himself to his senior is to claim innocence of the whole incident. Appellant was part and parcel of the whole deal. Is there for example any proper rebuttal of the evidence that Appellant collected N28,000.00 from one Mr. Oloko for the illegal use to which the army truck was employed? I think the General Court Martial was right in its finding and I so hold.
The appeal fails and is dismissed and the judgment of the General Court Martial delivered on the 18th March 1996 is hereby affirmed.
SIDI DAUDA BAGE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, S. S. Alagoa, J.C.A. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.
I agree with his reasoning and conclusion that the appeal lacks merit. I also dismiss same and affirm the judgment of the General Court Martial delivered on the 18th of March, 1996.
I abide by the order awarding no costs.
MODUPE FASANMI, J.C.A.: My learned brother S. S. Alogoa J.C.A. who prepared the lead Judgment has dealt with all the issues arising in this appeal. I agree withy the lead judgment that the appeal lacks merit. I have nothing more of great value to add. The judgment of the General Court Martial delivered on the 18th of March 1996 is also affirmed by me.
Appearances
Kazeem A. Gbadamosi Esq.For Appellant
AND
Mallam J. A. Adamu, Chief Legal Officer, Fed. Ministry of JusticeFor Respondent
